The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Parties to impeach the Judgement/Final Order being Order No.21 dated 07.09.2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I (for short, Ld. District Forum) in Consumer Complaint No. 110/2014. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent Nos. 1 & 2 under Section 12 of the Act on contest with the direction upon the Opposite Parties/Appellants to refund the amount of Rs.1,64,984/- only to the complainants along with compensation of Rs.20,000/- and litigation cost of Rs.5,000/- within thirty days from the of communication of order, in default the amount shall carry interest @ 10% p.a. till its total realisation.
The Respondents herein being Complainants lodged the complaint before the Ld. District Forum stating that being spouses of each other being allured by the publication and/or advertisement by several means and ways, the complainants came in contact with OP No.1 Company for travel in the European countries scheduled to have commenced from 17.07.2013 later on it shifted to 18.07.2013. The complainants have stated that as per demand, they paid Rs.82,000/- initially and Rs.1,02,984/- subsequently aggregating Rs.1,84,984/- towards expenses of such tour. On 05.07.2013 the complainant no.1 met a road traffic accident at Kolkata for which he was admitted to Belle Vue Nursing Home on that date. Subsequently, the complainant no.1 was shifted to Sant Paramanand Hospital in New Delhi for better medical treatment where he was released on 10.07.2013 and for such treatment, the complainants had to incur expenses of Rs.1,85,630.85P. On the ground of ailment of complainant no.1 pertaining to the bodily accident inflicted on 05.07.2013, the tour programme was cancelled on the same date over telephone and the complainants demanded for refund or repayment of the money so far paid towards expenses for the tour. The complainants requested the respondent no.1 Company to deduct the money from their deposit which was actually spent therefrom for Rs.14,000/- for obtaining U.K. Visa. The complainants have stated that they have obtained information about the hotel booking in abroad that no such accommodation in any hotel abroad was booked in the names of the complainants. However, on 16.07.2013 the OP Company sent one cheque for Rs.19,944/- out of Rs.1,84,984/- paid by them without any break up or any basis. After receipt of the cheque, complainants wrote to the OPs on 16.09.2013 and demanded Rs.1,60,984/- but it turned a deaf ear. Hence, the respondents approached the Ld. District Forum on the allegation of deficiency in services with prayer for several reliefs, viz. – (a) to direct the OPs jointly and severally to refund the sum of Rs.1,60,984/- along with interest @ 12% p.a.; (b) to pay compensation of Rs.2,00,000/- for harassment and mental agony; (c) litigation costs etc.
The Appellants being Opposite Parties by filing a written version have admitted that the payment by the complainants amounting to Rs.1,84,984/- towards the expenses of the tour for ‘All of Europe’ departing on 07.07.2013. The OPs have stated that after knowing the terms and conditions of tour itinerary and the tour price list, the complainants had signed the booking form in acceptance of the booking conditions. According to OPs, the total cost of tour per person was Rs.1,98,000/- + 3.09% = Rs.2,04,118/- but the complainants have paid Rs.1,84,984/- leaving a balance of Rs.2,23,252/-. The OPs have stated that as there was no negligence or deficiency in services on the part of them, the complaint should be dismissed.
On evaluation of materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon OPs, as indicated above. Challenging the said order, the OPs have come up in this Commission with the present appeal.
Ms. Soni Ojha, Ld. Advocate with Ms. Poonam Kumari Choudhury, Ld. Advocate for the Appellants has submitted that the respondents had agreed to travel abroad with the appellant no.1 company after knowing the terms and conditions of registration and cancellation and also the booklet ‘how to book your tour’. She has submitted that the journey of the tour ‘All of Europe’ was scheduled on 17.07.2013. The respondent no.1 met an accident on 05.07.2013 and only on 06.07.2013 the tour was cancelled by the son of the respondent through e-mail. Therefore, in accordance with the cancellation schedule when the cancellation has been made prior to 11 days of the tour as per terms of cancellation policy Rs.80,000/- per passenger will be deducted. In that perspective, when the respondents having obligation to pay Rs.4,08,236/- for the complainants for the said tour, paid only Rs.1,84,984/- leaving a balance of Rs.2,23,252/-, in accordance with the terms of cancellation, the appellants/OPs have rightly refunded of Rs.19,944/-. The Ld. Advocate for the appellants has submitted that the Ld. District Forum has passed the order beyond the terms and conditions of the agreement and as such the impugned order should be set aside.
Per contra, Mr. Gouranga Gupta Roy, Ld. Advocate with Mr. Subhasis Saha, Ld. Advocate for the respondents has contended that the tour was scheduled to be started on 18.07.2013 and the tour programme was cancelled on 05.07.2013 on account of fracture injury sustained by respondent no.1 and the same was intimated to the respondent no.1 company on the same date over telephone and also through e-mail by the son of respondents on the following date and in this regard, in all fairness, the respondent no.1 company should have produced all the documents regarding reservation of group tour in different hotels of Europe and the flight tickets in order to prove that they had to incur expenses of the entire amount of Rs.1,84,984/- and as such the impugned order should not be interfered with.
Undisputedly, the Respondent No.1 Company is one of the leading travel and tourism company in India operating under the brand name SOTC, which provides travel and tourism services to its customers. The respondents being couple booked with respondent no.1 company, a tour for ‘All of Europe’ departing on 17.07.2013. Admittedly, the respondents have advanced payment of Rs.82,000/- towards booking amount to secure two seats and further paid Rs.1,02,984/- to activate services which the respondents would have availed on tour.
It is also not in dispute that on 05.07.2013 the Respondent No.1 met a road traffic accident at Kolkata for which he was admitted to Belle Vue Nursing Home at Kolkata for treatment. Subsequently, respondent no.1 was taken to Sant Paramanand Hospital at New Delhi for further and better medical treatment where the respondent no.1 was treated and discharged on 10.07.2013 and an operation was done on the person of respondent no.1 on 08.07.2013. The Discharge Summary of the said hospital speaks that respondent no.1 being a person of 68 years of age was presented with history of RTA (hit by bike) and sustained injury to both wrists in Kolkata. However, no history of LOC/ENT Bleed/seizures or vomiting was noticed. On examination of both wrists, it was found – ‘both upper limb in bilateral slab, finger movements OK, Capillary Refil OK’. The patient was discharged on medication with an advise for physiotherapy and it has been recorded that in case of any difficulty, to contact Orthopaedic Surgeon on duty at the hospital.
Ld. Advocate for the Appellants has submitted that the injury sustained by respondent no.1 was of not that ilk which would prevent the respondent no.1 to undertake journey and there was no advise on the part of the hospital to that effect. What is apparent from the record is that at the relevant time, respondent no.1 was a senior citizen of 68 years old and, therefore, it would have been quite difficult for respondent no.1 to visit abroad, particularly like Europe where a tourist had to remain outside throughout the day for the purpose of tour. Having injury on both the wrists, certainly it is unexpected for a person to visit the places of Europe within 12 days from the date of accident.
The Ld. District Forum has observed – “It is also found from the materials of the record that OPs being big tour organisation had their various connection with different airlines, hotels etc. and even then failed to produce any document that because of non-availing of the tour programme by the complainants, the services that ought to have provided to the complainants were provided to different tourists where the OPs could have contacted for such facility be provided to them after booking the seats subsequently on the cancellation of the seats by the complainants”. On this point, I do not find any reason to disagree with the Ld. District Forum because the respondent no.1 company straight way refund Rs.19,944/- without specifying the reasons for sending such an amount out of Rs.1,84,984/- received by them from the respondents. In all fairness, the appellants had opportunity to produce all the relevant documents in order to show that due to non-participation of the respondents in the group tour, they had to incur expenses to such an extent for which they could only refund Rs.19,944/-.
It is needless to mention that the parties are bound by the terms of agreement. But in the agreement, there is no mentioning as to what amount would be returned in case of supervening impossibility to undertake the tour. Usually, in case of cancellation, a person is bound to follow the terms and conditions of cancellation as mentioned in “How to Book Your Tour” where it has been mentioned that in case of cancellation in between 14 to 04 day prior to the departure of the tour, a sum of Rs.80,000/- would be deducted. In the case beforehand, it is transpired that an old couple intended to visit Europe through appellant no.1 company on a group tour and prior to 12 days of the departure of tour, respondent no.1 (who was 68 years old then) had sustained fracture injury on both the wrists for which it was quite impossible for him to undertake such tour. In that perspective, the respondent no.1 company was under obligation to produce all the bookings of different hotels, airways in order to prove that appellant no.1 company did not allow some other person in place of respondents to avail the said tour. Assuming that no other person was accompanied to the tour, yet a question comes whether the booking in the hotels or flight tickets in the names of respondents were cancelled by appellant company.
After giving due consideration to the submission made by the Ld. Advocates appearing for the parties and on perusal of the record, when it reveals that the appellant no.1 company/OP No.1 has not produced the list of the members for whom hotels were booked at different places of Europe and the list of passengers of the scheduled flight for the journey, the refund of Rs.19,944/- by appellant no.1 company appears to be not in consonance with the terms and conditions coupled with the normal approach of a company. However, at the same time, the Ld. District Forum had no reason to direct the appellant company to refund Rs.1,60,984/- along with compensation of Rs.20,000/- and litigation cost of Rs.5,000/-, as the respondents themselves also contributed the negligence to some extent by non-availing the tour in any circumstances whatsoever.
As there is no evidence as to the amount incurred by appellant company towards the respondents for such tour, it is quite difficult to ascertain the actual amount to be refunded by the appellants. Considering the facts and circumstances of the case, I think a just compensation of Rs.1,00,000/- in the facts and circumstances will meet the ends of justice.
For the reasons aforesaid, the impugned judgement/final order is modified to the extent that the opposite parties/appellants shall pay a compensation of Rs.1,00,000/- to the respondents without any further liability and the said amount must be paid within 60 days from date, in default the amount shall carry interest @ 9% p.a. from date till its realisation. As the appellant company have already paid Rs.19,944/-, the said amount will be deducted from Rs.1,00,000/-.
With the above observations and directions, the appeal stands disposed of.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information.
