PER SHRI. S. G. CHABUKSWAR – HON’BLE MEMBER
1) The Complainant by this complaint claimed the reliefs of refund of tour booking amount Rs.25,101.25 paise with interest @ 18% p.a. till 04/11/2012 and further interest on Rs.10,000/- @ 18% from 05/11/2012 till the realization of amount, Rs.15,000/- towards the mental harassment and cost of complaint.
2) Facts leading to filing of the present compliant are as follows –
The Complainant is the resident of Wadala (East), Mumbai. The Opposite Party is running the business of tour and travels to the Kailash Mansarover Yatra. The Complainant was desired to take a Pilgrimage to the Sacred Mount Kailash and Mansarover therefore, he contacted with Mr. Kiran Jadhav from the office of the Opposite Party. The Complainant paid an amount of Rs.1,52,000/- to the Opposite Party towards the cost of Pilgrimage by the cheque dtd.30/04/2011 and same was encashed by the Opposite Party on 04/05/2011. However, the Opposite Party did not inform him the batch in which he was being booked. As per the requirement of Opposite Party the Complainant was to submit his health certificate therefore, he consulted Dr. Nitin A. Shah. The said doctor advised the Complainant not to take the trip. Accordingly, the Complainant informed the Opposite Party fact of his health certificate by the e-mail dtd.13/05/2011. He had also requested to the Opposite Party for refund of amount paid by him. The Opposite Party refunded to the Complainant amount Rs.1,27,000/- after the delay of more than five months i.e. on 05/10/2011. Thereafter, the Opposite Party has refunded Rs.15,000/- to the Complainant on 07/03/2012. The amount Rs.10,000/- was to be paid by the Opposite Party to the Complainant. The Complainant is entitled to interest @ 18% p.a. on the delayed refund.
3) The further case of the Complainant is that he had called upon the Opposite Party by the notice through his advocate dtd.25/07/2012 and demanded the amount Rs.23,499/- interest on the delayed refunds @ 18% p.a. He had also demanded further interest on Rs.10,000/- @ 18% p.a. from 01/08/2012 and Rs.15,000/- compensation towards the mental harassment. The Opposite Party served with the said notice. The Opposite Party neither replied nor complied the notice. Lastly on 13/09/2012 the Complainant again made demand of the said amount from the Opposite Party but in vain. The Opposite Party has adopted unfair trade practice and there is gross deficiency in service. Hence, this complaint.
4) The Opposite Party has resisted the claim by filing written statement on 29/04/2013. The contention of the Opposite Party is that Complainant is well aware about all the terms and conditions of Mount Kailash Mansarover Yatra. The said agreement took place between the Complainant and Opposite Party and they both have singed it. The persons who suffers from asthma, breathing problem, heart attack, kidney failure are strictly prohibited the journey of Mount Kailash and Mansarover Yatra. It is the first requirement of Yatri to have good physical fitness for traveling. It is one of the conditions of Chinese Government that Yatri must produce a physical fitness certificate from qualified doctor who must possess at least M.B.B.S. degree and it is believed that the Yatri has sound health on receiving physical fitness certificate.
5) The further contention of the Opposite Party is that they had orally intimated to the Complainant about his confirmation of the tour within 15 days of the booking. The Opposite Party could not able to en-cash the amount of Complainant because since beginning he was demanding full amount without deducting the non refundable and other amount. The Opposite Party could not release the amount which was payable after deduction as per rules. The Opposite Party has rightly informed to the Complainant that he would get a refund after deduction of Rs.25,000/- as per the terms and conditions of the agreement. The Opposite Party in spite of the terms and condition in respect of non-refund of Rs.25,000/- they have paid Rs.15,000/- to the Complainant in good faith with the intention that the Complainant would not make any further allegation or raise dispute in respect of his tour booking. The Opposite Party has denied that the Complainant is entitled to Rs.25,101/- towards refund of amount and Rs.15,000/- for mental harassment. The Opposite Party has denied all other allegations of the Complainant and prayed for dismissal of complaint with cost.
6) The Complainant has submitted his evidence on affidavit on 01/08/2013. He has also produced documents alongwith the complaint from Annexure – A to L. The Opposite Party has submitted evidence on affidavit of Shrikant Krushna Gurav, a Representative of Opposite Party on 24/09/2013. The Opposite Party has filed written notes of arguments and documents on 27/09/2013. The Complainant has filed written notes of argument on 03/02/2014. We heard Shri. Veenu Khatri, Ld.Advocate for the Complainant. Shri. Vijay Chavan, Ld.Advocate for the Opposite Party remained absent on the day of oral arguments. From the above evidence, arguments and documents following points arises for determination and our findings thereon are noted against each of them for the reasons given below -
Points Findings
1. Dos the complainant prove that there is deficiency Affirmative.
in service on the part of Opposite Party ?
2. Does the Complainant is entitled to the reliefs Rs.25,100/- in
as clamed. ? lump-sum towards the
interest on delayed
refund including
mental harassment
and cost Rs.3,000/-
4. What order ? As per final order.
Reasons :-
7) Point Nos.1 & 2: Admittedly Opposite Party is running the business of tour and travels to the Mount Kailash and Mansarover Yatra. On 30/04/2011 the Complainant submitted with the Opposite Party tour booking form of Mount Kailash and Mansarover Yatra to join Pilgrimage tour on 10/06/2011. The Complainant has also paid advance deposit to the Opposite Party Rs.1,52,000/-by the cheque dtd.30/04/2011. The Opposite Party has encashed the said cheque on 04/05/2011. As per the terms & conditions of the tour the Complainant was to produce physical health fitness certificate of a doctor who possess the M.B.B.S degree. Accordingly the Complainant consulted Dr. Nitin A. Shah who got a battery of test done and advised him not to take the trip. Thereafter, the Complainant informed the Opposite Party the fact of advise of Dr. Nitin A. Shah by e-mail on 13/05/2011. The Complainant had also demanded from the Opposite Party refund of Rs.1,52,000/- which he paid for booking of tour.
8) The Opposite Party has made refund of Rs.1,27,000/- to the Complainant by cheque. The Complainant received the said amount on 05/10/2011. The Opposite Party has also made refund of Rs.15,000/- to the Complainant by the cheque on 07/03/2012. The Opposite Party has retained amount Rs.10,000/- as non refundable amount on booking of tour. The Opposite Party has produced alongwith the affidavit of evidence of Shrikant Gurav a booking form of the tour. The said form bears the signature of the Complainant. It means the Complainant has admitted the terms and conditions mentioned in the said form and thereafter signed it. As per the condition of cancellation policy Rs.10,000/- is non-refundable, once the booking is done. The Complainant has done the booking therefore, he cannot claim the refund of Rs.10,000/- as per the above terms & conditions.
9) There is delay of about five months in making refund of Rs.1,27,000/- and 9 months delay in making refund of Rs.15,000/- to the Complainant. The Complainant in para 22 of his affidavit of evidence calculated the interest sum of Rs.23,499/- inclusive of interest on the delayed refunds @ 18% p.a. together with further interest on Rs.10,000/- @ 18% p.a.. There is deficiency of service on the part of Opposite Party due to delayed refund of Rs.1,42,000/- to the Complainant. Hence, Complainant is only entitled to the interest on the delayed refund. He also sustained mental harassment due to delayed refund. Thus, the Complainant in our view is entitled to lump sum amount of Rs.25,100/- towards interest on delayed refund inclusive of compensation for mental harassment. Considering the nature of complaint and reliefs awarded to the Complainant it is just to award Rs.3,000/- to the Complainant towards the cost of litigation. Hence, point no.1 is answered in the affirmative and point no.2 accordingly. In the result complaint deserves to be partly allowed with cost therefore, we proceed to pass following order –
O R D E R
i. Complaint No.230/2012 is partly allowed with cost against Opposite Party.
ii. The Opposite Party is directed to pay to the Complainant in lump sum Rs.25,100/- (Rs. Twenty Five Thousand One Hundred
Only) towards the interest on delayed refund of tour booking amount inclusive of compensation of mental harassment.
iii. The Opposite Party is directed to pay to the Complainant Rs.3,000/- (Rs. Three Thousand Only) towards cost of this complaint.
iv. The Opposite Party is directed to pay to the Complainant amount mentioned in above para nos. ii & iii within 45 days from the
date of service of this order and in the failure the Complainant would be entitled to recover interest on the said amount @ 9% p.a.
from the date of this order till its realization from the Opposite Party.
v. Certified copies of this order be furnished to the parties.
