This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OP as the did not take any step to refund him the amount , as paid for tour till filing of this complaint.

The brief fact of the case of the Complainant is that in the first phase of October, 2018 the Complainant was searching for a travel agent, who will conduct and arrange smooth and uneventful package tour in North India along with few other families which would include transportation, hotels, food etc. and in the course of such searching he came to know about this OP. After getting information the Complainant contacted with the Tour Manager (Mr. Manab Sur) and after a negotiation on 15.10.2018 he booked North India Tour for himself and ChaynaHalder, a professional Nurse, who will take care of his health. As per the fixed programme of the OP the OP the tour was scheduled on and from 09.02.2019 from Sealdah Railway Station by Ajmer Express at 11.05 p.m. and it was settled that the OP will provide food from the morning of 10.02.2019 and the room to be provided to the Complainant for himself and ChaynaHalder in a double bed room. The total cost of the said tour was settled at Rs.45,818/-, out of which Rs.43,858/- was for tour and Rs.1960 for GST and other charges for the said two persons. On the date of booking the programme the Complainant paid a sum of Rs.25,000/- and after acknowledgment of the said amount the OP had issued money receipt in favour of the Complainant. Accordingly the OP had handed over the photocopies of the railway tickets from Kolkata to Agra Fort, New Delhi to Haridwar, Dehradun to Varanasi and return ticket from Varanashi to Kolkata. After the said tickets the Complainant paid the balance amount of Rs.20,818/- on 03.12.2018. It is pertinent to mention that the OP used to hand over the original tickets to the tourists just before commencement of the journey, so as the tour was cancelled by the OP the original tickets was not handed over to the Complainant. On 08.02.2019 Mr. Manab Sur, the Manager of the OP had informed the Complainant that due to cancellation of Ajmer Express scheduled on 09.02.2019 by the Indian Railway, the North India tour will be cancelled. But the OP has also failed to arrange an alternative tour programme for the Complainant. The Complainant discussed with the Tour Manager of the OP on several occasion regarding the mode of refund the money as paid by him and on 12.02.2019 the OP told the Complainant that 20% penalty will be deducted from the total cost of the tour amounting to Rs.9164/- and within three weeks the refund process will be completed.  The Complainant was asked by the OP to return the original tour agreement papers and on good faith the Complainant had complied with the direction of the OP without perusing the regulation for 20% penalty expecting that the OP would keep his promise for return within three weeks. At the time of returning the documents the Complainant had issued a letter to the Manager of the OP on 13.02.2019 requesting to reply the said letter and to refund of the paid amount. The OP inspite of receipt of the said letter did not make any arrangement for refund of the paid amount to the Complainant. According to the Complainant the penalty clause cannot be applied in the case of the Complainant on the ground that the Indian Railways Had cancelled the train, in which there is no fault on the part of the Complainant and due to cancellation of the train the tour was cancelled. The Complainant issued an e-mail to the Manager of the OP on 07.04.2019 expressing his grudge on the issue of penalty @20%. Upon receipt of the said e-mail the OP send SMA on 08.04.2019, but the OP did not take step to refund the amount. As the OP did not take any step to resolve the dispute of the Complainant, finding no other alternative the Complainant has approached before the Ld. DCDRF, Barasat by filing this complaint praying for direction upon the OP to refund him the total amount as paid by him to the tune of Rs.45,818/-, Rs.1,50,000/- as compensation due to prolonged harassment, mental agony and pain and litigation cost.

It is pertinent to mention herein that initially this complaint was filed before the Ld. DCDRF, Barasat. But after establishment of this Ld. Additional CDRF (Commission as amended in view of the C.P. Act, 2019) this record has been transferred from the Ld. Commission, Barasat to this Ld. Commission in view of the order passed by the Hon’ble SCDRC as from the point of its territorial jurisdiction as this complaint falls within the territorial jurisdiction of this Ld. Commission. From the order sheets it is evident that after admission of this complaint notice was issued upon all the OP directing to contest the complaint by filing written version. But the OP did not turn up. After transferring of this complaint further notice was issued by this Ld. Commission. It is noticed by us that the OPinspite of receipt of the notice did not turn up to contest the complaint either orally or by filing written version. Hence this Ld. Commission was pleased to pass an order that the complaint will run exparte against the OP.

The Complainant has adduced evidence on affidavit along with several documents and also filed the WNA.

In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of M/s. Singla Builders & Promoters Limited vsAman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’

The abovementioned Ruling can be applicable in the case in hand as in the instant complaint inspite of receipt of the notice the Os chose not to appear and contest the complaint either by filing written version or orally, whatever it may be. Therefore in view of the said judgment the allegation as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegation on behalf of the OP.

We have carefully perused the entire record and documents as available and also heard argument advanced by the Ld. Counsel for the Complainant. It is seen by us that that in the first phase of October, 2018 the Complainant was searching for a travel agent, who will conduct and arrange smooth and uneventful package tour in North India along with few other families which would include transportation, hotels, food etc. and in the course of such searching he came to know about this OP. After getting information the Complainant contacted with the Tour Manager and after a negotiation on 15.10.2018 he booked North India Tour for himself and ChaynaHalder, a professional Nurse, who will take care of his health. The OP the tour was scheduled on and from 09.02.2019 from Sealdah Railway Station by Ajmer Express at 11.05 p.m. and it was settled that the OP will provide food from the morning of 10.02.2019 and the room to be provided to the Complainant for himself and ChaynaHalder in a double bed room. The total cost of the said tour was settled at Rs.45,818/-, out of which Rs.43,858/- was for tour and Rs.1960 for GST and other charges for the said two persons. On the date of booking the programme the Complainant paid a sum of Rs.25,000/- and after receipt of the said amount the OP had issued money receipt in favour of the Complainant. Accordingly the OP had handed over the photocopies of the railway tickets from Kolkata to Agra Fort, New Delhi to Haridwar, Dehradun to Varanasi and return ticket from Varanashi to Kolkata. After the said tickets the Complainant paid the balance amount of Rs.20,818/- on 03.12.2018. It is evident from the petition of complaint that the OP used to hand over the original tickets to the tourists just before commencement of the journey, so as the tour was cancelled by the OP the original tickets was not handed over to the Complainant. On 08.02.2019 the Manager of the OP had informed the Complainant that due to cancellation of Ajmer Express scheduled on 09.02.2019 by the Indian Railway, the North India tour will be cancelled. The OP did not arrange an alternative tour programme for the Complainant. The Complainant discussed with the Tour Manager of the OP on several occasion regarding the mode of refund the money as paid by him and on 12.02.2019 the OP told the Complainant that 20% penalty will be deducted from the total cost of the tour amounting to Rs.9164/- and within three weeks the refund process will be completed.  On being asked by the OP, the Complainant returned the original tour agreement papers and on good faith without perusing the regulation for 20% penalty expecting that the OP would keep his promise for return within three weeks. At the time of returning the documents the Complainant had issued a letter to the Manager of the OP on 13.02.2019 requesting to reply the said letter and to refund of the paid amount. The OP inspite of receipt of the said letter did not make any arrangement for refund of the paid amount to the Complainant. According to the Complainant the penalty clause cannot be applied in the case of the Complainant on the ground that the Indian Railways had cancelled the train, in which there is no fault on the part of the Complainant and due to cancellation of the train the tour was cancelled. The Complainant issued an e-mail to the Manager of the OP on 07.04.2019 expressing his grudge on the issue of penalty @20%. Upon receipt of the said e-mail the OP send SMA on 08.04.2019, but the OP did not take step to refund the amount. As the OP did not take any step to resolve the dispute of the Complainant, hence this complaint is initiated by the Complainant praying for certain reliefs along with refund of the paid amount.

It is evident from the reverse page of the money receipt (Clause no-8) that ‘due to natural calamity, strike and political disturbances, if the tour is cancelled, passenger have to pay20% of the tour price as compensation’.

Upon perusal of the abovementioned clause as enumerated on the reverse page of the money receipt we are to say that the OP is not entitled to deduct any amount from the amount as paid by the Complainant on two scores i.e. the tour was not cancelled due to the reason of the Complainant and in such cancellation the Complainant had to fault/role. Secondly the grounds has been mentioned in the said clause based on which the OP is empowered to deduct 20% from the tour price as compensation, but in the case in hand no evidence is forthcoming that due to natural calamity/ strike/and/or political disturbances the tour was cancelled, rather the tour was cancelled due to cancellation of the concerned train by the Indian Railways. As the said terms and the conditions of the tour package have been accepted by the both parties, now the OP has no authority to travel beyond the same. Hence the clause 8 of the agreement cannot be implemented on this Complainant. Admittedly the OP received a sum of Rs.45,818/- from the Complainant for the questioned tour package. The said amount is still existing under the custody of the Complainant since 03.12.2018 (last date of payment) and the OP is getting interest on the said amount since then to till date. Therefore in our view the OP is entitled to refund the said amount to the Complainant along with interest.As the OP did not take any step to resolve his grievance/dispute, hence finding no other alternative the Complainant had approached before the Court of Law by filing this complaint praying for direction upon the OP to refund the paid amount of Rs.45,818/- along with other reliefs.

Now we are to adjudicate as to whether what will be the interest component.

In this respect we are to rely on the Judgment passed by the Hon’ble NCDRC in the case of VisheshSood& Another vs. M/s. Raheja Developers Limited, in the Consumer Case no-2923/2017, decided on 15.11.2019, wherein Their Lordships have held that the developer shall refund the principal amount with compensation @12% p.a. from the respective dates of deposit till the date of entire realization together with cost, in default the amount shall attract compensation @14% p.a. for the same period.

In another case passed by the Hon’ble Supreme Court of Pioneer Urban Land & Infrastructure Limited Vs. GovindanRaghvan (2019) 5 SCC 725 and Kolkata West International City (P) Limited vs. DevasisRudra, (2019) CPJ 29 (SC) wherein it has been held by Their Lordships that complainant cannot be made to wait indefinitely for possession of the unit. In the case of Kolkata West International City (P) Limited the Hon’ble NCDRC was pleased to hold that the refund shall be made along with interest @12% p.a.

Therefore having regard to the abovementioned judgments passed by the Hon’ble Supreme Court as well as the Hon’ble NCDRC we are of the opinion that in case of refund of the paid amount by the OP to the Complainant it will carry interest @12% p.a. from the date of making payment of the amount till its entire realization.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-RBT CC/168/2019 is hereby allowed on exparte against the OP with cost.

The OP is directedto refund the amount as paid by the Complainant to the tune of Rs.45,818/- along with interest in the form of compensation @12% p.a. from the date of making payment of the amount i.e. 03.02.2018 till its entire realization within a period of 45 days from the date of passing this judgment, in default the interest component will be  @14% p.a. instead of 12%(in the form of compensation). The OP shall paya sum of Rs.5,000/- to the Complainant as litigation cost within a period of 45 days from the date of passing this judgment, failing which the Complainant will be at liberty to put the entire order in execution as per provision of law.

Let plain copy of this final judgment be given to the parties free of cost as per the CPR, 2005.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER