FINAL ORDER/JUDGMENT

Presented by:

Minakshi Chakraborty,  Presiding Member.

 Brief facts of the case:

 This case is filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant. In a nutshell the fact of the case is that having heard about the Tours and Travels company from the advertisement in the Anandabazar Patrika Dt.22.10.2016  the complainant went to the OP’s office on 23.11.2016 and  expressed his desire to go to Egypt along with his wife and accordingly collected the tour details from the OP office and came to learn that Rs.2,30,000/- in total was needed for the aforesaid tour and accordingly on good faith the complainant herein have paid a sum of Rs.1,20,000/- out of total package tour of Rs.2,30,000/- vide cheque  no.09767 dt.23.11.2016 Union Bank, Chinsurah Branch to the Op company.  More so, the OP company by acknowledging the same issued receipt thereof vide receipt no.SP14. The tour session for Egypt was to be started on and from 18.02.2017 and in the last week of January, 2017 the Tour Manager of the OP Company requested the complainant to make payment of the rest amount of the tour package.  Accordingly the complainant on 30.01.2017 paid the rest amount of Rs.1,10,000/- only by way of cheque no.09768 dt.30.01.2017  of Union Bank, Chinsurah Branch to the tour manager of the OP company in presence of one Mr. Mahapatra and Mr. Pandey the man of the OP company issued receipt thereof vide receipt no.10061 and they assured the complainant that within a week the OP company would have over the Air ticket, VISA and other documents of the complainant himself as well as for his wife but surprisingly after few days  the tour manager of the OP company informed the complainant that the said Egypt tour had been cancelled alongwith an assertion that the complainant is at liberty to took back the amount so deposited or opted for Japan Tour and the complainant being disappointed requested  the tour manager of the OP company to refund back the entire amount of Rs.230000/- only and at that time said the tour manager of OP company assured the complainant that within 15^th April, 2017 the amount of Rs.230000/-  would be refunded to the bank A/C of the complainant herein through NEFT in three installments and accordingly the complainant herein provided the details of his bank a/c to the OP company.  But after several requests the OP company have refunded Rs.50,000/- only to the complainant by way of NEFT and the same was received by the complainant on 21.03.2017 and  the complainant have  made several requests to the Op company as well as his men  but they did not pay any heed to that effect and being helpless the complainant sent one letter on 20.04.2017 to the OP company through speed post and requested them to refund the outstanding amount. But the OP company did not give any satisfactory reply and having no other alternative the complainant lodged complaint before the officer-in-charge, New Market P.S, Kolkata, stating the fact as stated above on 05.05.2017.  Subsequently, the OP company issued one letter on 05.05.2017 addressing to the complainan stating that one part of the outstanding amount will be cleared  within May, 2017 and rest part of the same will be cleared by July, 2017.  Accordingly, the OP company issued 3 post dated cheques of Axis Bank Ltd., Lelin Sarani, Kolkata-700013  being nos074374 dated 30.05.2017, 074375 dated 27.06.2017, 074376 dated 04.08.2017 in favour of the complainant each amounting to Rs.60,000/- only respectively and the first cheque being no.074374 dated 30.05.2017 was honored on 01.06.2017 to the account of the complainant herein.  Subsequently, the second cheque being no.074375 dated 27.06.2017 of Axis Bank Ltd, amounting to Rs. 60,000/- was duly presented for encashment by the complainant to the Union Bank of India, Chinsurah Branch, Hooghly on 11.07.2017.  On 18.07.2017 it was informed to the complainant herein by the said Union Bank of India, Chinsurah Branch, Hooghly that the said cheque being no.074375 dated.27.06.2017 of Axis Bank Pvt. Ltd. was dishonoured due to Insufficient Fund”  and accordingly the same was returned to the complainant and as such the complainant through his Ld. Advocate sent one letter through registered post with A/D on 28.07.2017 to the OP company requesting him to pay the said amount of Rs. 60,000/- within 15 days from the date of receipt of this notice, otherwise the complainant herein shall take necessary legal measures against said OP company and after receiving the aforesaid notice dt.28.07.2017 the OP company through his Ld. Advocate sent one reply notice on 08.08.2017 to the complainant herein as well as to the Ld. Advocate of the complainant, but the contents of said reply letter is totally vague and ambiguous  and has no base at all.  Thereafter on 31.08.2017 the complainant  through his Ld. Advocate sent one reply letter and requesting the Op company to clear up all the dues at the earliest, but in vain.

Complainant files the complaint praying direction upon the opposite party to pay a sum of Rs. 1,20,000/- alongwith 10% interest till the date of final realization and to pay a sum of Rs.1,00,000/- for mental agony and financial loss and cost of the case and to give any other relief as fit and proper under law and equity.

Defense Case:- The opposite party contests the case by filing written version denying inter-alia all the material allegations leveled against him and states that the OP cancelled the tour to Egypt for the reason that during those days there was severe climatic disorders going on throughout Europe and safety and security of the travelers is a prime concern of the Op.  But the OP at no point of time asked the complainant to opt for tour to Japan and the Op has been advised to deal with only those allegations which are necessary and relevant  for the purpose of the proper and effective adjudication of the instant petition of complainant and as per version of the op has dealt with those allegations which are necessary and relevant for proper and effective adjudication of the said petition and those allegations which are not specifically admitted herein shall be deemed to be denied and op did not ask the complainant to opt for tour to Japan instead of refund of money. Thus, OP prays for dismissal of the complaint  with exemplary cost.

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party.

The opposite party filed evidence on affidavit which reiterates the averments of the written version.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party have filed separate written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides shall have to be taken into consideration for disposal of the instant proceeding.

            Heard argument of both sides at length. In course of argument ld. Lawyers of both sides have given emphasis on evidence and documents produced by the parties.

From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief?

DECISION WITH REASONS

Issue no.1:          In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986.The point is thus answered in the affirmative.  

Issue no.2:      At the very outset it is to be made clear that as per provision of section 11 of the C.P. Act 1986 this District Commission has no jurisdiction to entertain a case like the present one but as per section 11 of the said Act District Commission can entertain such an application if the commission thinks it fit. On perusal of Order no. 2 dated 25/9/17 the case has been admitted by this commission, when the date was fixed for admission hearing, and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.

Issue nos. 3 & 4:

Both the issues are taken up simultaneously for the sake of convenience.

At the very outset it is to be made clear that as per provision of section 11 of the C.P. Act 1986 this District Commission has no jurisdiction to entertain a case like the present one but as per section 11 of the said Act District Commission can entertain such an application if the commission thinks it fit. On perusal of Order no. 2 dated 25/9/17 the case has been admitted by this commission, when the date was fixed for admission hearing and also this commission has been pleased to peruse the order no. 9 dt. 16/11/2018 wherein it has clearly been stated,” the case filed by the complainant before this forum has sufficient jurisdiction to entertain”.

In view of above it may be said that this commission by order no. as stated above has admitted the instant application by necessary implication.

In the instant case complainant expressed his desire to go to Egypt along with his wife and accordingly collected the tour details from the OP office and came to learn that Rs.2,30,000/- in total was needed for the aforesaid tour and accordingly paid a sum of Rs.1,20,000/- out of total package tour of Rs.2,30,000/- vide cheque  no.09767 dt.23.11.2016 Union Bank, Chinsurah Branch to the Op company, the OP company by acknowledging the same issued receipt thereof vide receipt no.SP14. The tour for Egypt was scheduled on 18.02.2017 and in the last week of January, 2017 the Tour Manager of the OP Company requested the complainant to make payment of the rest amount of the tour package.  Accordingly the complainant on 30.01.2017 paid the rest amount of Rs.1,10,000/- only by way of cheque no.09768 dt.30.01.2017  of Union Bank, Chinsurah Branch to the tour manager of  the OP company and the O.P issued receipt thereof vide receipt no.10061 and  assured the complainant that within a week the OP company would hand over the Air ticket, VISA and other documents of the complainant himself as well as for his wife but surprisingly after few days  the tour manager informed the complainant that the said Egypt tour had been cancelled alongwith an assertion that the complainant is at liberty to took back the amount so deposited or opted for Japan Tour and the complainant being disappointed requested  to refund back the entire amount of Rs.230000/- only and at that time said the tour manager of OP company assured the complainant that within a certain period they will return the entire amount of the complainant for which the complainant provided the O.P his entire bank details. But after lapse of sometime the O.P refunded Rs. 50000/ to the bank account of the complainant and issued three post dated cheques in favour of the complainant amounting to Rs 60000/ each. The complainant was able to encash only one cheque out of those three cheques because rest of the cheques was dishonored due to insufficient fund. The complainant sent letter to the OP for refund of his rest amount due from OP along with certain consequential reliefs.

The O.P has filed the written version and there appears a frustrated endeavor on the part of the O.P to submit that only because of severe climatic disorders going on through out the continent of Europe safety and security of the travelers the tour was cancelled. The statement made by the O.P in para 10 of the written version stated above has neither been substantiated by production of any documentary evidence or any cogent or reliable evidence and as such to anymore about the O.P with regard to cancellation of the tour does not find any leg to stand on. A careful scrutiny of the written version of the O.P along with the evidence in chief and brief notes of argument there appears no whisper as to give return of the entire money of Rs. 2,30,000/ which was given by the petitioner. It appears that a migere sum of Rs 1,10,000/ on two different occasions  on two different procedures have been paid to the complainant . All the documents referred to above filed by the O.P appeared to be conspicuously be absent to show that any further amount has been delivered to the complainant.

Undoubtedly, the facts referred to herein above clearly manifest that an amount of Rs. 1,20,000/ is still awaits to be paid to the complainant by the O.P.

Both the issues are thus disposed of.

Hence,

ordered

that the complaint case no. 191 of 2017 be and the same is  decreed on contest against O.P.

The complainant do get refund of Rs 1,20,000/ and also do get compensation  of Rs 20000/ for mental agony and Rs. 10000/ towards litigation cost within 45 days from date from the O.P failing which the complaint is at liberty to take recourse to law.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

The Final Order will be available in the following website www.confonet.nic.in.