Date of Filing – 06.11.2017

Date of Hearing – 26.03.2018

            The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Opposite Party to assail the Judgement/Final Order dated 21.09.2017 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-III (for short, Ld. District Forum) in Consumer Complaint No. 85/2017.  By the impugned order, the Ld. District Forum allowed the consumer complaint lodged by the Respondent on contest with a direction upon the Opposite Party/Appellant to refund Rs.1,47,249/- within two months otherwise it shall carry interest @10% p.a. from the date of filing of complaint till realisation, to pay Rs.20,000/- as compensation and Rs.10,000/- as litigation cost.

          The Respondent herein being Complainant lodged the complaint under Section 12 of the Act before the Ld. District Forum asserting that the complainant paid Rs.1,77,249/- to OP towards cost of tour of Spain and Portugal including expenses of VISA.  However, the Visa was not sanctioned by the office of the Embassy of Spain at New Delhi for the reasons information provided are not sufficient.  Consequently, the complainant had to cancel the tour and requested the OP to refund the deposited amount but the OP did not pay any heed to such requests.  Hence, the respondent approached the Ld. District Forum with prayer for several reliefs including refund of the deposited amount of Rs.1,77,249/- along with 18% interest thereon, compensation of Rs.1,00,000/- and litigation cost of Rs.50,000/-.

          The Appellant being Opposite Party by filing a written version has stated that the Visa is provided by the concerned authorities of the respective parties and they are mere assist the intending tourists for filling up the Visa from for obtaining the same from the concerned authorities.  The OP has stated that the Visa was not given on the ground that information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable for which they should not be blamed and when there was no deficiency on the part of them the complaint should be dismissed.

          After assessing the materials on record, the Ld. District Forum by the impugned final order allowed the complaint with the directions upon the opposite party as indicated above.  Being aggrieved and dissatisfied with the impugned order, the OP has come in this Commission with the present appeal.

          Ld. Advocate for the complainant has submitted that the Ld. District Forum at the time of passing the impugned order deducted a sum of Rs.30,000/- and asked the appellant to pay the balance amount of Rs.1,47,249/- which is a third case beyond the pleading.  Ld. Advocate for the appellant has drawn my attention to the terms and conditions of the tour and the cancellation terms in case of refusal of Visa and submitted that the appellant company through their Advocate requested the respondent to visit the office to settle the dispute but the respondent did not attend the office of the company.  Ld. Advocate for the complainant has also submitted that the grant of Visa is the sole discretion of the Government of the country and the appellant had no role regarding grant of Visa and as such the Ld. District Forum has misdirected itself in passing the order impugned.  To fortify his submission, Ld. Advocate for the appellant has referred several decisions of Hon’ble National Commission reported in – (1) 2015 (1) CPR 440 [M/s. Maria Margida de Noronha Tavora e Costa Major of Age, Business & Ors. – Vs. – Travaco Holidays Pvt. Ltd.], (2) 2018 (1) CPR 74 [Samrajit Rpychowdhury – Vs. - Kundu Special & Anr.] and (3) 2008 CTJ 32 (K. Uma Kant & Ors. – Vs. – First Flight Couriers].

          Per contra, Ld. Advocate for the respondent has contended that when the respondent claimed refund of amount, in all fairness, the appellant should have disclosed the amount entitled by the respondent after deduction of the amount as per Agreement but the appellant did not do so rather asked the respondent to visit their office to settle the matter.  He has also submitted that the appellant being OP in their written version should have disclosed the amount entitled by the respondent after observing the cancellation terms as per Agreement.

          I have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.

          Undisputedly, the respondent for the purpose of tour being named ‘Best Of Spain & Portugal’ for 11 nights/12 days with the appellant company deposited a sum of Rs.1,77,249/-.  However, the respondent could not avail the tour on account of cancellation of Visa by the Spain Consulate at New Delhi.  The appellant company was under obligation to facilitate the Visa application form in order to enable the respondent to obtain Visa smoothly.  However, the Visa was denied by the Consulate for which the appellant/company should not be blamed.  The mere fact that the appellant gave assistance for filling up Visa application form will not amount to rendering any services by them to respondent for the purpose of obtaining Visa.  In the agreement also, it has been specifically mentioned that granting of Visa is entirely at the discretion of the Embassy/Consulate and has no bearing on the above payment schedule.

          However, the terms of the agreement indicates that the tour price includes Visa fees.  According to the terms of the agreement, in case of refusal of Visa, Visa cost plus service charge of Rs.5,000/- would be deducted.  When the respondent in his petition of complaint has specifically claimed the entire amount of Rs.1,77,249/-, the appellant/company in their written version should have specifically averred the amount that would be deducted as Visa cost plus service charge.  In fact, the appellant company was the mediator to facilitate the Visa of respondent and it is through the appellant/company, the respondent has paid the Visa cost.  Therefore, it is within the special knowledge of the appellant/company as to the actual cost of Visa that has been paid for the purpose for obtaining Visa of the respondent.  Unfortunately, the appellant/company did not discharge their liability to prove the burden in this regard.  When the appellant company has special knowledge about the actual cost of VISA, applying the provision of Section 106(b) of Indian Evidence Act, it can be said that it was an obligation on the part of appellant company to disclose the Visa cost to show bonafide.

          In such a situation, the Ld. District Forum, after scrutiny of the pleadings and the evidence on record could not ascertain the actual amount to be awarded.  The appellant company had shown inclination to refund the amount and as such in replying the letter to the respondent, they asked the respondent to visit their office to settle the accounts.  Therefore, the Ld. District Forum found it quite difficult to assess the actual amount to be refunded to the respondent.

          The submission of Ld. Advocate for the appellant that the Ld. District Forum has made out a third case by giving a direction to refund the amount after deduction of Rs.30,000/- does not appear to be justified because when the appellant company themselves agreed to refund the amount and without refunding the same or offering the same, tried to evade the responsibility, I think the Ld. District Forum did not commit any error by directing the OP to refund the money of Rs.1,47,249/-.  But the Ld. District Forum should not have imposed an interest @ 10%p.a. and Rs. 20,000/- as compensation.  Taking into consideration, the provisions of Section 3(1) of the Interest Act, in my considered opinion, a compensation in the form of simple interest @ 8% p.a. from the date of award till the date of realisation would meet the ends of justice.  However, as the situation compelled the respondent to lodge the complaint and he had to contest the case by appointing an Advocate, the imposition of litigation cost of Rs.10,000/- appears to be justified.

          In view of the above, the impugned order is modified to the extent that the appellant/OP shall refund Rs.1,47,249/- along with interest thereon @ 8% p.a. from the date of basic order i.e. 21.09.2017 till its total realisation apart from the litigation cost of Rs.10,000/- imposed by the Ld. District Forum.

          With the above observations and directions, the appeal stands disposed of.

          The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-III for information.