DATE OF FILING: 3.4.2014.
DATE OF DISPOSAL: 17.12.2016.
Dr. Alaka Mishra, Member (W):
The complainants have filed this consumer complaint under Section 12 of Consumer Protection Act, 1986 alleging deficiency in service against the Opposite Parties (for short, the O.Ps) and for redressal of their grievance before this Forum.
2. Briefly stated the case of the complainants are that the complainants are members of the Lions Club of Berhampur and the O.P.No.1 is the Tour Operator who is engaged in organizing convention Tours for Lions Clubs since last 25 years and O.P.No.2 is the District Governor of Lions Club of Berhampur. The 95th Annual International Lions Convention Tour held in BUSAN –KOREA from 22nd to 26th June 2012 and the team led by O.P.No.2 desired to visit BUSAN through the services of O.P.No.1. The complainant and other members paid advances for booking of travelling packages. The complainants paid a sum of Rs.80,000/- i.e. Rs.20,000/- each through O.P.No.2 and O.P.No.2 sent an amount of Rs.1,50,000/- only by NEFT to the O.P.No.1 on 18.4.2012. The said amount which includes the amount of the complainants’ contribution was sent in form of NEFT to the Account of O.P.No.1 bearing S.B.I. Account No. 3199301044303 dated 18.4.2012 and the O.P.No.1 was requested for travelling arrangements to BUSAN CONVENTION TOUR. The O.P.No.1 failed to arrange the tour as the tour package was full and offered the complainants for package No.5 i.e. to attend the convention through MALAYASIA and the complainants finding no way out opted to accept the package No.5 to travel through Malaysia to BUSAN. But the O.P.No.1 also failed to arrange said package No.5 which was offered to the complainants. The complainants could not avail the package as the O.P.No.1 failed to arrange the same. On 21.09.2012 the Complainant No.1 being an advocate sent notice to the O.P.No.1 to refund the said amount which he has received but failed to honor his commitment to arrange tour package for the complainants and O.P.No.1 did not return the advance amount. The complainants approached O.P.No.2 for return of advance amounts who assured the complainants that he will talk to O.P.No.1 for refund of advance amount and talked O.P.No.1 in presence of complainants over phone and O.P.No.1 assured to return the amount as the tour package was fall and as he failed to arrange the tour package. The O.P.No.1 in spite of several approaches did not refund the advance amount to the complainants as well as other members who paid advance for the tour package. Finding no other way the petitioners sent a legal notice through their advocate on 02.01.2014 calling upon O.P.No.1 to refund the advance amount within 7 days of receipt of the same with a copy to O.P.No.2. The O.P.No.1 neither refunded the amount nor gave reply to the advocate’s notice. The above acts of the O.Ps have caused much mental agony and financial loss to the complainants. Alleging deficiency in service on the part of the O.Ps the complainant prayed to refund Rs.80,000/-,alongwith compensation of Rs.30,000/- for harassment and mental agony and litigation cost of Rs.5000/- in the best interest of justice.
3. The O.P.No.1 received notice from this Forum but did not preferred to file written version and not contested the case as a result O.P.No.1 was declared ex-parte on dated 3.5.2016. The O.P. No.2 received the notice and contested the case.
4. Upon notice the O.P.No.2 filed written version/argument through his advocate. It is stated that the complainants are the members of the Lion’s Club of Berhampur and this O.P. is District Governor of the Lions’ Club during the year 2012. The Lions’ Club International Organizes International Conventions in different countries of the world and the members of the Lions’ Club of the World are attending the convention for interactions on social welfare and other Lions activities. The Lions’ Club International Organized 95th Annual International Convention at “BUSAN” Korea from 22nd June to 26th June, 2012. The O.P.No.1 is one of the authorized agents for tour management to facilitate travelling facilities accommodation, etc. of the members of different lion’s club members of India. The complainants and others including O.P.No.2 desired to attend the Convention and accordingly paid advances for booking air tickets to “BUSAN” and accommodations. The complainants and other members contribution was collected and an amount of Rs.1,50,015/- was sent to the O.P.No.1 to facilitate travelling and staying arrangement of members at BUSAN. Out of the above amounts, the contribution of the complainants was Rs.80,000/-. As directed by the O.P.No.1, the said collected amounts of members were deposited in through N.E.F.T. in the Bank Account of O.P.No.1 bearing S.B.I. Account Number 3199301044303 on dated 18.04.2012. This O.P.No.2 being the District Governor collected the above amount from the members and sent the same to the O.P.No.1 along with necessary documents as required by O.P.No.1 for booking of air ticket and accommodation at ‘BUSAN KOREA”. The O.P.No.1 failed to arrange the tour package and offered an alternative package via Malaysia to which the members agreed to avail. But the O.P.No.1 could not arrange the alternative package also. As such the complainants and other members failed to attend the International Convention at “BUSAN KOREA”. The complainants contacted O.P.No.2 regarding tour accommodation and on contact, the O.P.No.1 regretted and showed his inability as he failed to arrange tour package as there was no vacancy and assured this O.P. to refund the entire amount of Rs.1,50,000/- he has received as advance for travelling and accommodation to BUSAN convention. The complainants pressed hard for refund of the advanced amount of Rs.80,000/- which they have paid to this O.P. This O.P. contacted the O.P.No.1 to refund the entire amount and also assured to refund. This O.P. also telephoned so many times to O.P.No.1 for refund, but he went on assuring to refund the amount, but did not refund the amount. This O.P. being hard pressed by complainants and other funded members went to Kolkata to get the amount from the O.P.No.1 but the O.P.No.1 avoided and did not meet this O.P. This O.P. submitted that the O.P.No.1 has acted negligently and deliberately by not returning/refunding the money of the members and is liable to refund the amount of Rs.1,50,000/- with interest and cost. This O.P.No.2 has no fault, but he has acted as an intermediary by virtue of his position as District Governor of Lions Club, Berhampur. Hence this O.P.No.2 prayed this Forum to direct the O.P.No.1 to refund the amount as claimed by the complainants and dismissed the case against this O.P.No.2 in the interest of justice.
5. On the date of final hearing of consumer dispute both the learned counsels for complainants as well as for the O.P. No.2 are present. We heard the argument from both sides at length and perused the complaint petition, written version, written argument and relevant documents filed by both parties placed on the case record. During the course of hearing, the learned counsel for the complainants contended that the complainants are members of Lion Club, Berhampur and every year this club organized tour to different countries. This year the club members are willing to visit Busan at Korea to attend 95th Annual International Convention scheduled to be held in Busan at Korea from 22nd June to 26th June 2012. For that purpose the complainants deposited (Rs.20,000/-each for four members i.e. Rs.80,000/- before O.P.No.2 for arrangement of tour package and O.P.No.2 deposited Rs.1,50,000/- only by way of N.E.F.T. to the O.P.No.1 on dated 18.4.2012 bearing S.B.I. Account Number 3099301044303. The O.P.No.1 failed to arrange the tour package but offered to avail package No.5 to travel through Malayasia to Busan Korea. Again O.P.No.1 failed to arrange the same package. The complainants did not get back any amount from O.P.No.1 for non- arrangement of tour programme. By aggrieved such situation on 21.9.2012 the complainant No.1 sent advocate notice to return the amount but that also did not serve the purpose. So, once again legal notice was sent through their advocate on dated 2.1.2014 to O.P.No.1 for refund of the amounts. Finding no other alternative complainant filed this complaint petition before this Forum. After receipt of notice from this Forum the O.P.No.1 did not choose to appear before this Forum, hence finally on 3.5.2016 O.P.No.1 was declared ex-parte.
6. On the contrary, O.P.No.2 appeared before this Forum and submitted his argument that the complainants deposited amount Rs.1,50,015/- in the account of O.P.No.1 for facilitating tour travel along with staying arrangement at Busan Korea for 8 persons. He also admitted that four complainants have deposited Rs.20,000/- each i.e. a total sum of Rs.80,000/- with O.P.No.2 and O.P.No.2 deposited Rs. 1,50,015/- in the account of O.P.No.1 with other member of Lions club as O.P.No.2 is the District Governor of the Lions’ club. He also admitted that every year club official booked air tickets for their Lions Club members and O.P.No.2 received advance amount from the members and same was usually deposited in the account of O.P.No.1. The O.P.No.2 from his S.B. Account on 18.4.2012 transferred the amount vide INB NEFT SBINH 12109649803 to the travel point through referred cheque No. NEFT INB IR 13947513 transferred to account holder 3199301044303 a sum of Rs.1,50,015.00. The O.P.No.2 contended that he has transferred all amounts to the account of O.P. No.1. Therefore, O.P.No.2 has no liability and prayed that O.P.No.2 may be exempted from liability fix on him in the interest of justice.
7. We have carefully perused the pleadings and have gone through the materials placed on the case record. It is evident that O.P.No.2 has deposited the said amount in the account of O.P.No.1 vide S.B.I. Account Number 3199301044303 for the purpose of tour to Busan Korea. However, the O.P.No.1 did not organize the tour and not returned the amount to the O.P.No.2, as is evident from argument advanced by O.P.No.2 before us during the course of hearing. In this context we would like to say that the O.P.No.1 in this case directly not receive the aforesaid amount that is Rs.80,000/- from the complainants. They have deposited the same with the O.P.No.2. So, we can’t direct the O.P.No.1 to refund the said amount directly to the complainants. We would like to saddle the liability on both the O.Ps jointly and severally. In this case the O.P.No.2 during arguments has admitted to have received Rs.80,000/- from the complainants and it is also an admitted fact that the complainants have not directly paid the amount to the O.P.No.1. Hence, we have no hesitation to direct the O.P.No.2 to refund the said amount to the complainants but simultaneously we also direct the O.P.No.2 to recover the same from O.P.No.1 through the proper process of law.
8. In the light of the above discussion and considering the fact and circumstance of the case, we allowed the case of the complainants against both the O.Ps who are jointly and severally liable to refund a sum of Rs.80,000/- (Rupees Eighty Thousand) only to the complainants with savings bank interest to the complainant from the date of receipt of the amount till actual payment. The O.Ps are also burdened with cost of Rs.1,000/- (Rupees One Thousand) only which in our considered view, would meet the ends of justice in the instance case. The O.P.No.2 is directed to recover the said amount of Rs.80,000/- from O.P.No.1 through proper process of law. Compliance of the order shall be made within two months from the date of receipt of this order failing which the complainant is at liberty to realize the said amount from O.Ps under Section 25/27 of the Consumer Protection Act, 1986 along with penal interest at the rate of 6% per annum. The case of the complainant is disposed of accordingly.
9. The order is pronounced on this day of 17th December 2016 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost as per rules and a copy be sent to the server of
