Order-16.
Date-13/08/2018.
Sri Swapan Kumar Mahanty, President.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in brief, is that the OP is a registered company carrying of business of tour and travel. The complainant came to know from the advertisement dated 18-01-2017 published in The Telegraph that the OP has arranged a tour programme to New Zealand. The OP informed the complainant that the tour will be started form Kolkata to New Zealand via Singapore. The duration of the journey will be more than 10-12 hours. On good faith, the complainant accepted the tour programme and as per requirement the complainant paid Rs.40,000/- to the OP by an account payee cheque as booking money and also credited to pay the balance amount as per requirement of the OP. Before such payment, complainant repeatedly requested the OP to give the details of tour programme including travel schedule but the OP gave an oral assurance to furnish those documents as soon as possible. Subsequently, the complainant came to know from Dr. Ghosh one of her co-traveller that the flight would not be from Kolkata to New Zealand via Singapore direct but from Kolkata – Mumbai – Singapore – Brisbane – New Zealand involving much longer travel distance and time. It is very much difficult to the complainant being a senior citizen to undertake a long journey for which she sent letter as well as e-mail to the OP with a request to cancel her preliminary booking and arrangement to refund the advance booking amount of Rs.40,000/-. Finally the OP regretted the request of the complainant to refund the initial booking amount. There is a gross negligence on the part of the OP for not rendering proper service to the complainant, for such activities the complainant has to suffer huge mental agony, physical stress and consequential and financial hardship. The cause of action of the case first arose when the OP did not consider the bona fide request of the complainant and subsequently on 27-07-2017 the OP finally regretted her request to refund the initial booking money. Hence, the complainant prays for direction upon the OP to refund the initial booking money of Rs.40,000/- including Rs.50,000/- as compensation for causing mental harassment, agony and also for deficiency in service against the OP.
The OP has contested the case by filing written version wherein they have denied all the material allegations of the complainant. The specific case of the OP is that the complainant herself approached the OP to book a tour for New Zealand to depart on 28-09-2017 after accepting the terms and conditions. To book a particular tour, complainant required to pay non-refundable booking amount to confirm her participation on the said tour. The complainant paid Rs.40,000/- for herself. Money receipt of the non-refundable booking amount was provided to the complainant and the OP proceeded the booking for the said tour departing on 28-09-2017. Subsequently, on 11-07-2017 the complainant choose not to participate in the tour for the reasons best known to her and asked for cancellation of tour. The forfeiture of booking amount clause is mentioned in the terms and conditions. The complainant has failed to prove her case on merit for obtaining any relief as per complaint. The OP prays for dismissal of the complaint with cost
Points for Determination
- Is the complainant a consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Whether there is deficiency on the part of the OP?
- Is the complainant entitled to get any relief or reliefs as prayed for?
Decision with Reasons
Points No.1 & 2 . These two points have not been pressed at the time of hearing of argument. We have perused the pleadings of the parties, the evidence as well as documents garnered on a record. It appears to us that the complainant is a consumer u/s.2(1)(d)(ii) C.P. Act, 1986 and this Forum has jurisdiction to entertain the instant complaint. Thus both the points are decided in favour of the complainant and against the OP.
Points No.3 & 4 . Both points are taken up together for the sake of convenience and brevity in discussion.
We have perused the complaint, the written version, examination in chief submitted by both the parties, advertisement dated 18-01-2017 published in the newspaper ‘TheTelegraph’, leaflet containing abridge over New Zealand trip in the month September, 2017, bank statement for encashment of cheque of Rs.40,000/-, hard copy of email dated 17-07-2017 and 23-07-2017 of the complainant, hard copy of reply email of OP dated 24-07-2017 and 27-07-2017, hard copy of email dated 28-07-2017. Complainant was intimated 12 hours tour from Kolkata to New Zealand via Singapore. Before making payment a route chart was sent to the complainant. Subsequently, the complainant came to know that the journey would be taken 22 hours instead of 12 hours. The journey was from Kolkata - Mumbai – Singapore – Brisbane - New Zealand. The present scheduled of tour journey is much stressed than the earlier tour programme and it is not possible to undertake by the complainant being a senior citizen. Complainant opted for cancellation of trip and requested for refund of booking money.
The Ld. Advocate for the OP submitted that there is no proof that OP assured the complainant for 12 hours journey and as soon as the tour is booked with booking money does not refundable. The complainant knows it very well that booking amount is not refundable and the complainant was informed about the details of tour programme before payment of Rs.40,000/-. The complainant put her signature in the booking form after understanding the terms and condition of the tour programme without any protest. Therefore, the complainant is debarred established from making such frivolous allegations. The OP is deficient in rendering proper service and admittedly adopted unfair trade practice. Undisputedly, the complainant wrote letter including email for refund of booking money. The OP denied to refund the money in terms of booking conditions. Complainant could not imagine any distant tours that OP told that the tour was for 12 hours and in such reason the complainant opted for the tour after booking terms and condition as well as payment the OP changed their tour programme. The complainant was not aware about the change of the tour programme. It is not possible any person to read out the terms and conditions of this leaflet’s terms and conditions as it is written in tiny font size, which is also an unfair trade practice adopted by the OP. Complainant paid Rs.40,000/- as booking money so the complainant is a consumer u/s.2(1(d)(ii) of the C.P. Act. The OP failed to render service to the complainant, as such, they are deficient in rendering service. Due to scheduled change of tour programme the complainant sustained mental harassment and agony. Therefore, the complainant is entitled to the relief as prayed for. Both the points under determination are decided in favour of the complainant and against the OP.
In the result the case succeeds in part.
Hence,
Ordered
That the instant complaint case being No.428 of 2017 be and same is allowed on contest in part with cost of Rs.5,000/- (Rupees Five thousand only).
That the OP is directed to refund Rs.40,000/- (Rupees Forty thousand only) to the complainant with interest at the rate of5 percent p.a.(at the rate of five per cent per annum) within 30 days from the date of filing of the complaint i.e. on 23-10-2017 till the full and final satisfaction of decree.
That the OP is further directed to pay Rs.10,000/- (Rupees Ten thousand only) as compensation for the mental agony and harassment to the complainant within 30 days from the date of this order.
That the OP is also directed to pay Rs.20,000/- (Rupees Twenty thousand only) to this Forum for adopting unfair trade practice within 30 days from the date of this order.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OP shall be liable to pay punitive damage at the rate ofRs.5,000/- (Rupees Five thousand) per month as per Section 14(d) of the C.P. Act to be paid to this Forum till full and final satisfaction of the decree.
