Kerala

StateCommission

A/249/2017

FOCUS HOLIDAYS - Complainant(s)

Versus

SALEEM.C - Opp.Party(s)

ABDUL SHUKOOR

07 Jan 2020

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NUMBER 249/2017

                        JUDGMENT DATED : 07.01.2020

 

(Appeal filed against the order in CC.No.132/2010

on the file of CDRF, Malappuram)

PRESENT

SRI.T.S.P.MOOSATH              : JUDICIAL MEMBER

SRI.RANJIT.R                        : MEMBER

SRI.K.R.RADHA KRISHNAN    : MEMBER

 

APPELLANT

     The Manager, Focuz Holidays, Calicut Air Port Junction,

     Kolathur, Kondotty, Malappuram , Pin – 673 634

 

                 (BY Adv.Sri.Abdul Shukkur Arakkal)

 

                                        VS

RESPONDENT

           Saleem.C, S/o.Muhammed (Late),

           Cholakkal House, Hajiyar Palli, Malappuram,

           Pin – 676 519

 

                                  JUDGMENT

SRI.T.S.P.MOOSATH                        : JUDICIAL MEMBER

                The opposite party  in CC.No.132/2010 of the Consumer Disputes Redressal Forum, Malappuram, in short, the district forum has filed the appeal against the order passed by the district forum by which they were directed to pay Rs 33,000/- to the complainant, the amount paid by him and to pay Rs 5000/- as cost to the complainant.

 

                    2.  The averments contained in the complaint are in brief as follows. The complainant had decided to go to a tour to Thailand which was arranged by the opposite party. The complainant was attracted by the advertisement of opposite party and had given Rs 31500/- as the cost of the journey including stay, food, travel, flight charges, visa and all other expense, medical assistance was also provided in the above scheme. The opposite party fixed the travel on 25.02.2016. Later it was informed that Rs 2000/- had to be paid by the complainant. Even after repeated requests, the opposite party was not ready to issue the copy of the flight ticket, hotel booking etc. On 22.02.2016 the complainant felt severe pain in his abdomen and it was found that he was having kidney stone. When contacted the doctor, it was told that if medical assistance is available during the journey the complainant could join in the trip. He may need immediate pain killer injection. All these facts were intimated to opposite party and they informed that the trip was not arranged by them and there will not be any medical assistance during the journey. Thereafter the complainant directed the opposite party to cancel the journey and opposite party told that they will refund the amount after deducting Rs 5000/- as fine. The complainant agreed for the same. Several times the complainant demanded the same and he even visited their office. All his efforts were in vain and on his enquiry it is known that the opposite party had committed many cheating. Still he did not receive the money and hence this complaint.

                3.      The opposite party filed version raising the following contentions. The payment of the entire amount by the complainant and his friend Hamza, the assurance of medical assistance, the payment of additional amount of Rs 2000/-, the non issuance of flight ticket etc were specifically denied by the opposite party. They had not cheated any one. The tour was conducted properly and went off well as planned. The complainant had come to the office and threatened the opposite party that he will malign the opposite party in case the amount was not returned.  The complainant had lost his money because of his own fault. The opposite party is a reputed travel and tour service provider and enjoys considerable status among the public. It had arranged package tour to Thailand in January 2016 in tie up with “smile around the world tours and travels of Bangkok in Thailand. Arrangements in Thailand were made by them. Flight tickets were paid by the opposite party.  Airline never gives refund of money for cancellation of tickets, but only change date for another flight. Usually tickets were provided when the passengers came up for the trip. The total package tour cost was Rs 33,000/- per person including the visa. The complainant and his friend approached the opposite party in 2016 January. Out of the above 33000/-,,Rs 2000/- was for Visa and had to be paid on arrival. That will be either collected at the time of booking and given to the person when he reaches the visa counter when his turn comes. The complainant and his friend together paid Rs 63,000/- in total. No additional amount was paid by them. When the complainant called them on 25.02.2016, it was impossible for them to do anything because all payments except for the visa had already been made. It was not possible to cancel the booked tour at that stage. Since the complainant is an experienced tourist, he is well aware of the terms and conditions. Hence they are not responsible for complainants own fault. No medical records were produced by the complainant. No deficiency is committed by them and the complainant has to be dismissed with cost.

                4.      Complainant filed affidavit and the documents produced by him were marked as Exts.A1 to A5. No oral or documentary evidence was adduced by the opposite party. Considering the evidence adduced by the complainant the district forum has passed the impugned order. Aggrieved by the order passed by the district forum the opposite party has preferred the present appeal.

                5.      Heard both sides. Perused the records.

                6.      The complainant has decided to go to a tour to Thailand which was arranged by the opposite party and he paid the amount as demanded by the opposite party. The opposite party fixed the travel on 25.02.2016. According to the complainant on 22.02.2016 he felt severe pain in his abdomen and it was found that he was having kidney stone. These facts were intimated to the opposite party and they informed that the trip was not arranged by them and there will not be any medical assistance during the journey. The complainant directed the opposite party to cancel the journey and the opposite party told that they will refund the amount after deducting Rs 5000/-. But they have not paid that amount. Later when he approached the opposite party they stated that they would give only Rs 15,000/-. But that was also not paid. Alleging deficiency in service on the part of the opposite party the complainant has filed the complaint. It is contended by the opposite party that the complainant has not informed about his inconvenience for participating in the journey and he had informed the matter only on 25.02.2016, just few hours before starting the trip and it was impossible for the opposite party to do anything since all payments except the payment for visa do been already made. The complainant had made all arrangements for the tour in advance and they had conducted the tour on 25.02.2016.  The complainant is bound by the terms and conditions of the tour itinery and he is not entitled to get any amount from the opposite party.

                7.      Ext.A2 shows that the complainant and his friend together paid an amount of Rs 46,000/- to the opposite party. Ext.A3 bill shows that Rs 10,000/- was paid by the complainant to the opposite party. So the district forum found that the complainant had paid Rs 33,000/- to the opposite party. The district forum directed the opposite party to return that amount to the complainant. It is the case of the appellant that the respondent / complainant could not participate in the tour programme because of his ailments and not because of any fault of them and as per the terms and conditions of the tour programe the complainant is not entitled to get any amount from them. The counsel for the appellant submitted that the respondent / complainant has not produced the terms and conditions of the tour programe before the district forum. There is no basis for that submission since the opposite party could have very well produce the same. It is to be noted that even though the opposite party filed version before the district forum they had not adduced any evidence in support of their contention. In the appeal it is stated that the opposite party had entered appearance before the district forum and entrusted the matter to an advocate at Manjeri who failed to appear for the case. It is an admitted fact that the complainant could not participate in the tour progrmame because of his ailment. The opposite party has not adduced any evidence to prove that as per the terms and conditions of the tour programme. The complainant is not entitled to get any amount from them since he could not participate in the tour programme. The district forum directed the opposite party to return the entire amount of Rs 33,000/- paid by him to the opposite party. The counsel for the appellant submitted that the complainant did not inform his inconvenience to participate in the tour programme because of his ailment in time and it was informed to them only on 25.02.2016 before few hours of starting of the journey. So they were not in a position to do anything since all the amounts except the payment for visa were already made. It is stated by the opposite party that they had booked air ticket for the complainant and the Airlines will never give refund of the money for cancellation and only change of date of journey will be allowed. It is stated by the opposite party that they had made all arrangement in Thailand through the tour operator by making payments. It is the case of the opposite party / appellant that the complainant / respondent intimated his inability for participating the tour only on 25.02.2016 just few hours before starting of the journey. The complainant has not adduced any evidence to prove that he had informed the opposite party on 22.02.2016 about his inability to participate in the tour programme due to ailment. It is true that the opposite party had not produced any document to show that they had booked air ticket for the complainant and made arrangement for stay of the complainant in Thailand and made all other arrangements in Thailand by making payments. But in the complaint itself it is stated by the complainant that his friend who had booked for the tour had participated in the tour programme to Thailand. So from the evidence, facts and circumstances brought out in evidence it has to be found that the opposite party booked air ticket and made all arrangements for the tour programme by making payments and since the complainant has not intimated about his inconvenience in time and since he intimated the same only on 25.02.2016 just few hours before starting the journey, the opposite party could not able to get back the amount paid by them and they might have lost some amount. So the direction of the district forum to the opposite party to return the entire amount paid by the complainant is not justified. The stand taken by the opposite party that the complainant is not entitled to get any amount form them and the refusal on their part to pay at least some amount to the complainant is certainly deficiency in service on their part. Admittedly the complainant has not participated in the tour programme. It was not because of any fault of the opposite party and the complainant has not intimated his inconvenient to the opposite party in time. So the complainant cannot claim back the entire amount paid by him from the opposite party. But the fact remains that the complainant has not participated in the tour programme conducted by the opposite party. Considering the facts and circumstances of the case we consider that the amount of Rs 33,000/- directed by the district forum to be paid by the opposite party to the complainant is to be modified and reduced to Rs 16,500/-( half of the amount paid by the complainant to the opposite party) and the cost of Rs 5000/- ordered by the district forum is to be modified and reduced to Rs 2500/-. We do so. So the order passed by the district forum is to be modified to that effect.

 

                In the result, the appeal is partly allowed. The order passed by the district forum is modified as follows. The opposite party is directed to pay / return Rs 16,500/- to the complainant together with cost of Rs 2500/-

 

                Parties are directed to suffer their respective cots.

 

                The respondent / complainant is permitted to obtain release of the amount of Rs 19,000/- deposited by the appellant at the time of filing of the appeal, on filing proper application to be adjusted / credited towards the amount ordered as above.

 

T.S.P.MOOSATH              : JUDICIAL MEMBER

 

RANJIT.R                        : MEMBER

 

K.R.RADHA KRISHNAN     : MEMBER

Be/

 

KERALA STATE

CONSUMER DISPUTES

REDRESSAL COMMISSION

 SISUVIHARLANE

 VAZHUTHACADU

 THIRUVANANTHAPURAM

 

APPEAL NUMBER 249/2017

                        JUDGMENT DATED : 07.01.2020