Shri Swapan Kumar Mahanty, President.

This is an application u/s.12 of the C.P. Act, 1986.

            The complaint case, in brief : is as follows :-

            The complainants booked a group tour to Japan for 7 days and 6 nights on payment of Rs.3,00,000/- per head for themselves with the OPs. The complainant paid the entire trip amount to the OP-2 and OP-2 collected Passport of the complainants for Visa. The complainants were waiting to get the travel documents inclusive of travel tickets with tour details but the tour programme has been rescheduled by the OP-2. Ultimately, the OP-1 postponed the group tour of Japan due to logistical problem and they remained silent. The complainants requested the OPs to refund the booking money of Rs.3,00,000/- for the tour and the OP-2 issued two cheques of  Rs.1,00,000/- each dated 12.06.2017 and 06.07.2017 drawn on Axis Bank Limited, Lenin Sarani Branch, Kolkata, in the name of complainants and also issued two separate cheques both dated 09.08.2017  in the name of complainants for Rs.50,000/- each drawn on Axis Bank Limited, Lenin Sarani Branch, Kolkata. The complainants had deposited those cheques for encashment but all the cheques were dishonoured. Finding no other alternative, the complainants wrote a letter dated 07.12.2017 to the Assistant Director, Central Consumer Forum Grievance Redressal Cell with a request to get refund of Rs.3,00,000/- through mediation. The authorized representative of the OPs did not turn up in the tripartite meeting dated 15.01.2018 and 06.02.2018 though the complainants had been appeared in the said meeting. The OPs failed to provide the service of package tour to Japan as per their commitment despite of receiving full payment. There is deficiency in service on the part of the OPs. Hence, the case.

            The OPs have contested the case by filing a joint written version contending inter alia, that the Forum has no jurisdiction to entertain the consumer complaint and the instant case is not maintainable in its present form and in law. The specific case of the OPs is that they cancelled the group tour to Japan on account of logistical disturbances and the postponement of the tour was communicated to the complainants well in advance and co-operation was sought for from the complainants.  On the contrary, the complainants did not co-operate with the OPs despite of knowing the facts of logistical disturbances. The postponement of the group tour to Japan was not intentional rather the tour was postponed for various reasons. There is no deficiency in service on the part of the OPs. Accordingly, the OPs have prayed for dismissal of the complaint.

            In the light of the pleadings of the parties the following points necessarily came up for determination :

1)         Has the DCDRF Jurisdiction to entertain the consumer complaint?

2)         Is the consumer complaint maintainable in its present form and in law?

3)         Are the OPs deficient in rendering services to the complainants?

4)         Are the complainants entitled to get relief/reliefs as prayed for?

Decision with Reasons

Points No. 1 to 4 :

All the points are taken up together for the sake of convenience and brevity in discussion.

Both parties have tendered evidence on affidavit. They have also given reply against the questionnaires set forth by the advisories. Complainants file brief notes of argument.

It remains undisputed that the Complainants booked Japan Tour and paid full amount of the tour cost to the OP2 through NEFT on 24-02-2017 and 24-03-2017. It also remains undisputed that Mr. Satish Chandra Dey, Director of OPs over telephone informed that the tour programme has been rescheduled on 21-04-2017. Again Mr. Dey informed the Complainants over telephone that the group tour programme has been postponed on account of logistic problem in Japan.  Complainants also approached the OPs for refund of money against postponement of Japan Tour. It is also true that Mr. Dey, Authorized Signatory of OP1 issued four cheques amounting to Rs.1,00,000/-, Rs.1,00,000/-, Rs.50,000/- and Rs.50,000/- dated 12-06-2017, 06-07-2017, 23-08-2017 and 09-08-2017 respectively drawn on Axis Bank Ltd. in favour of the complainants but all the cheques were dishonoured on account of shortage of fund.  Admittedly the Assistant Director, Central Consumer Forum Grievance Rederssal Cell tried their level best to resolve the dispute but the representative of the OPs did not turn up to the tripartite meeting dated 06-02-2018.

The Ld. Advocate appearing for the OPs submitted that DCDRF has no jurisdiction to entertain the consumer complaint on the ground that cheques were dishonoured and the complainants ought to have file complaint case u/s.138 of the N.I. Act before the Criminal Court.  Ld. Advocate has further submitted that there is no deficiency in service on the part of the OPs as they have already refund Rs.3,00,000/- to the complainants by issuing post dated cheques.

Per contra, the Ld. Advocate appearing for the complainants has submitted that the DCDRF has jurisdiction to entertain the instant consumer complaint in relation to certain deficiency of service and non-filing of case u/s.138 N.I. Act is no bar for the entertainment of the complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.

We have gone through the consumer complaint and its written version thereto including documents on record as well as submissions of the Ld. Advocates of both sides.  In our opinion, the plea taken by the OPs that the complainants should have to get relief from the Criminal Court and this Forum has no jurisdiction to entertain the consumer complaint, being devoid of merit as the remedy provided under the C.P. Act, 1986 is in addition to the provisions of any other law for the time being in force. 

The OPs have unable to conduct the group tour on the ground of losses in remitting advances for travel arrangements/accommodation/flight tickets and Visa Fees (vide Annexure-C).  We also find that the OPs have published an advertisement in a reputed daily Newspaper for conducting a group tour to Japan.  Ultimately, the OPs have not been able to conduct the group tour.  Complainants paid Rs.3,00,000/- to the OPs as full and final cost of the tour but unable to enjoy the tour at Japan.  Moreso, Mr. Satish Chandra Dey, Director of OP1 Tarashakti Hospitality Pvt. Ltd., issued four post dated cheques (vide annexure-B series) in favour of the complainants and those cheques were dishonoured (vide annexure – D series) with remarks on account of shortage of fund.  We find that the complainants faced first harassment for being unable to go to Japan due to the fault of the OPs and secondly, they have also moved from pillar to post to get back the money.  Therefore, the OPs have deficient in rendering services to the complainants and indulged in unfair trade practice.  We do not find any reason why the OPs would collect amount from the travellers including the complainants by publishing advertisement in daily Newspaper and hold the amount as per their own discretion.

We find from the facts and circumstances of the case that it is not a case of personal service under a contract but the complainants hired the services of the OPs as a Travelling Company who undertakes the arranging tours at various places in Japan on payment from travellers.  The OPs undertakes to do the travelling arrangements, reservation, lodging, boarding and sight-seeing to the people including the complainants on payment of charges.  The tour was not conducted as scheduled and postponed.  Thus, there is shortcoming in service of the OPs.  Under these circumstances, failure to discharge the contractual obligation in the tour as scheduled for which monetary consideration was accepted by the OPs amounts to deficiency under the provisions Sub-Section (g) of Section 2(1) of the C.P. Act, 1986.  In our view, the consumer complaint is maintainable in its present form and in law.  We also hold that the OPs demonstrated a gesture of deficiencies in services and have also caused harassment, mental pain and agony to the complainants.  Thus, the complainants have been able to prove their case of refund of money for postponement of tour to Japan.  Accordingly, all the points under determination answered in the affirmative.

In the result, the case succeeds.

Hence,

Ordered

That the complaint case be and the same is allowed on contest against the OPs with litigation cost of Rs.5,000/-(Rupees Five thousand) only.

            OPs are directed to refund Rs.3,00,000/- (Rupees Three lakhs) only to the complainants within 30(thirty) days from the date of this order along with litigation cost.

            OPs are further directed to pay Rs.30,000/-(Rupees thirty thousand) only to the complainants for causing harassment, mental pain and agony within the said stipulated period.

            Liberty be given to the complainants to put the order in execution, if the OPs transgress to comply the order.