Sri Shyamal Gupta, Member

This Appeal is filed against the Order passed by the Ld. District Forum, Kolkata, Unit-II (Central) on 30-12-2015 in C.C. No. 264/2015 whereof the complaint has been allowed.

To narrate in brief, case of the Complainant, is that, he paid a sum of Rs. 22,000/- to the OP as advance on 02-04-2015 for the purpose of visiting Nepal along with his family members.  As ill luck would have it, a severe earthquake hit Nepal on 17-04-2015. Further case of the Complainant is that on 16-05-2015, when he visited the office of the OP, at the insistence of the OP, he paid the balance sum of Rs. 35,443/- through cheque.  Unfortunately, in the wake of recurrent earthquakes during the said period, the trip had to be ultimately cancelled.  Therefore, the Complainant issued a stop payment instruction to his banker in respect of the cheque amounting to Rs. 35,443/-.  Besides this, the Complainant also asked the OP  to return the advance amount paid by him.  However, to his utter surprise, instead of returning the advance money, the OP demanded Rs. 35,443/- from him.  Thereafter, Complainant sent several reminders to the OP asking them to pay back the advance money, but to no avail.  Hence, the complaint.

Case of the OP, per contra, is that initially 63 tourists intended to visit Nepal, including three members of the Complainant’s family.  The tour was planned to start from 24-05-2015.  However, severe earthquake played spoilsport to the entire planning.  Therefore, 56 persons, out of total 63 tourists expressed their unwillingness to proceed for Nepal at that juncture.  However, remaining 7 persons, including three members of the Complainant’s family insisted on going ahead with the tour.  Showing goodwill gesture, the OP agreed to take those 7 persons to Nepal and subsequently, remitted Rs. 50,000/- to its counterpart in Nepal to make necessary arrangements for the tourists.  It is further stated that subsequent to dishonour of Cheque amounting to Rs. 35,443/-, despite efforts, the Complainant could not be contacted and therefore, OP was left with no other choice but to abandon the scheduled trip.  It is stated that, as a mark of goodwill gesture, the OP returned the entire money to the remaining 4 tourists who were still interested to proceed with the scheduled tour.

Decision with reasons

Heard the Ld. Advocates of both sides and perused the material on record.

According to the petition of complaint, an earthquake struck Nepal on 17-04-2015.  It appears, in the wake of said devastating natural calamity, i.e., earthquake, out of the 63 tourists, 56 persons opted out of the scheduled tour on 16-05-2015, leaving with only 7 intending tourists to go ahead with the scheduled trip.

Admittedly, when the Respondent along with others met the Appellant on 16-05-2015, the latter repeatedly insisted that it would conduct the tour if tourists were still keen to visit Nepal and on due consent of the said 7 tourists, including 3 members of the Respondent’s family, the Appellant agreed to make necessary arrangement. 

It further appears from the photocopy of letter dated 02-06-2015 issued by Samrat Tours & Travels Pvt. Ltd., Nepal that the Appellant indeed made an advance of Rs. 50,000/- for the scheduled trip.  However, the said tour operator turned down the request of the Appellant to refund the said advance amount on the ground that it was in contravention of the terms and conditions of the agreement and rules of service providers and hotels in Nepal. 

Both sides blamed each other for the cancellation of the tour.  However, on a thoughtful consideration of the matter in its entirety, it appears to us that both sides were responsible in one way or the other for the mess up. 

On one hand, the Respondent did not show due maturity to appreciate the prevailing ground reality despite wide media coverage about the distressing effect of said calamity.  Further, although almost all the tourists rescued themselves from the scheduled tour, still the Respondent was adamant and refused to relent. Had he shown due pragmatism, the proposed tour would anyway collapsed due to viability factor.

On the other, since the Appellant needed reasonable time to go to the boardroom to effect radical changes to the earlier tour plan in the wake of downsize of head-count thereby, fine tune/finalize the tour itinerary and remit advance to Samrat Tours & Travels Pvt. Ltd., it was most unlikely that everything was completed before 17-05-2015.  While earthquake shaken the tiny nation deep hard on 17-05-2015 onwards, it is not clear to us, despite this, why did the Appellant went head with its plan to conduct the tour instead of deferring the impending tour for the time being in the first place, if for no other reason, then at least taking into consideration the safety and security concerns.  It would not require one to be an expert, but simple prudence was suffice to appreciate that the situation was not at all conducive at that juncture to visit the mountain nation. Had it abruptly stalled the advance payment to Samrat Tours & Travels Pvt. Ltd., the said tour operation would invariably develop cold feet. 

On due consideration of the overall situation it thus appears that no one can be entirely hold responsible for the mess up created surrounding the subject tour. We, therefore, feel that to be fair to everyone, both sides must shoulder some losses.

Accordingly, the Appeal succeeds in part.

Hence,

O R D E R E D

That Appeal stands allowed on contest in part. None of the parties should claim any further money from each other. The impugned order is hereby set aside.