DEBASIS BHATTACHARYA, PRESIDING MEMBER

Date : 21.06.2016

           This appeal has arisen out of order  dtd.15.01.2015 in CC No.367/2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (Central) ( in short, District Forum). By the impugned order, the Ld. District Forum has allowed the case. Being aggrieved by dissatisfied with the same , the OPs thereof have preferred this appeal.

           The case of the Complainant is that he for self and family members, totaling eight members, booked for a tour programme of Himachal (Big) of the OPs having departure on 18.05.2014 and the package money was Rs.17,200/- and the Complainant paid Rs.50,000/- as advance money on 21.02.2014. Unfortunately, mother of the Complainant died on 28.03.2014 due to sudden cardio vascular attack and they were compelled to cancel the tour, which was intimated to the OP by email on 31.03.2014. But, it was reported that out of Rs.50, 000/-, only Rs.15, 000/- shall be refunded after deduction of Rs.35,000/-, which is illegal and uncalled. Accordingly, the Complainant sent email on 14.04. 2014 to reconsider his prayer and to refund the said amount of Rs.50, 000/-  after deduction of 5%, but there was no response. Accordingly,  the case.

             On the other hand, case of the OPs is that the complaint is not maintainable. The Complainant did not avail said tour programme and/or canceled the same on the thirty days before journey, i.e., 31.03.2014 through email. The Complainant booked the said tour and put his signature in booking cum final voucher. The OPs offered  the Complainant to refund the booking money as per cancellation rules of the said tour, i.e., a sum of Rs.15,000/-  out of the booking amount Rs.50,000/-. There were no cause of action as stated by the Complainant and/or on any other date and no question of deficiency of service. So, the complaint be dismissed.

            It is to be considered if the impugned order suffers from inconsistencies as regards facts and law so as to reverse the same as prayed for.

Decision with reasons

          Ld. Advocate for the Appellants has submitted that for the sudden death of the mother of the Complainant on 28.3.2014, he informed the matter of cancellation of the  tour by an email on 31.3.2014, praying for refund of the booking amount of Rs.50,000/-. This prayer is exclusively at the behest of the Complainant for his personal predicament, which induced him to cancel the tour. So, as per rules for cancellation of tour for 30 days before journey 25% per head is to be refunded. The Complainant is well aware of the fact, and it was so informed to him, which could not be altered in his favour. But, still he opted to file the complaint case claiming 5% deduction only, which is not permissible. The Ld. District Forum has been wrong in just allowing the prayer of the Complainant. Such a stipulation by the Ld. District forum is beyond terms and conditions of the tour programme, which were very much known to the Complainant and he was aware of the same, from the time he booked for the tour. There is, as such, no deficiency in service of the OPs i.e. Appellants on the score of refund of the advance/booking money. So, there is no case to penalise the OPs with a compensation of Rs.10,000/- in the matter also. There is also no ground to award penalty against the OPs of Rs.300/- per day as imposed by the Ld. District in this behalf. He has referred to a decision of the  Hon’ble Supreme Court reported in [1974] 2 SCC 33/ [1975]1 SCR 504/[1974] 0 AIR (SC) 1682. He has also referred to two decisions of the Hon’ble National Commission reported in 2008  CTJ 954 (CP) (NCDRC), and the other decision pertinent , namely, reported in 2008 CTJ 32 (CP) (NCDRC).

           Ld. Advocate for the Respondent has submitted that the death of the mother of the Complainant was beyond his comprehension and control, and so for this God’s act, he should have been favoured with less deduction, otherwise than prescribed. He was rather compelled to cancel the tour and intimated the same to the OPs by an email well before the date of journey for the uncalled for and unwarranted situation. Such deduction of 25% is wholly an illegal one.

          The terms and conditions of the tour are binding on both the parties, and the same can not be altered by a dictum of the Forum, which is beyond the scope of privilege, prerogative and discretion of the Consumer Fora.  It is natural that such cancellation of tour is only occasioned by some calamity, human or natural. It can not be said to be a force majeure. At a ripe age, people are destined to die. It is also found from the email dated 14.4.2014 of the Complainant to the  OP No. 2 that they had  travelled with the OP Company twice to Nepal, lastly on 29.5.2013. No deficiency in service is found altogether. The impugned order is thus not tenable and sustainable. So, it is set aside. Appeal is allowed. Thus, the complaint case stands dismissed.