DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 9th day of December, 2022
Present : Sri.Vinay Menon V., President
: Smt.Vidya A., Member
: Sri.Krishnankutty N.K., Member Date of Filing: 24/11/2018
CC/153/2018
Ravikumar K.,
S/o.Late Krishnan,
Uppathu Veetil,
Kovilakam, Moothanthara,
Vadakkanthara (PO),
Palakkad – 678 016 - Complainant
(By Adv. S.Sivakumar)
Vs
Thomas Cook India Pvt.Ltd.,
Palal Towers, MG Road,
Ravipuram, Cochin – 682 016
Rep.by its Manager - Opposite party
(By Adv.M/s.Sanjay & Parvathy Associates)
O R D E R
By Sri. Vinay Menon V., President
- Gist of pleadings accepted by both the parties are that the complainant is an unsuccessful applicant for a tour program, ‘Australian Delights’, choreographed and executed by the opposite party. Pursuant to directions made by the opposite party, the complainant had deposited Rs. 1,00,000/- and Rs. 3,51,637/- on two occasions. Subsequently, the opposite party informed the complainant that his visa was rejected and returned Rs. 2,34,287/-.
Hereafter unity of pleadings bifurcates with legality of retention of balance amount of Rs. 2,17,350/- being challenged and defended by the parties herein. Per opposite party, Rs. 1,00,000/- is non-refundable deposit. To the complainant pleadings alleging illegality over this retention, the opposite parties alleged that the arrangements for stay and other facilities were made well in advance and in order to make good the commitments made by the opposite party to the hoteliers and other facilitators in Australia, retention was necessitated and the opposite party was entitled to retain the same as being expenses of the tour and such retention is covered by the Terms and Conditions forming the foundation of the relationship between the complainant and the opposite parties. They vouch by the sanctity of the retention and sought for dismissal of the complaint.
2. The following issues are considered:
1. Whether the opposite party is entitled/ justified in retaining Rs. 2,17,350/-?
2. Whether there is any deficiency in service on the part of Opposite party?
3. Whether the complainant is entitled to any of the reliefs sought for?
4. Reliefs, if any?
3. Evidence comprised of testimonies of PW1 and DW1. Exhibits A1 to A5 were marked on the side of the complainant and Exts. B1 to B10 were marked on the part of opposite parties. Marking of Exhibits B11 to B14 were dispensed with.
Exhibit B2 to B8 are objected to on the ground these 7 documents does not pertain to the complainant. Exhibits B9 and 10 are objected to on the ground the complainant is not in receipt of these documents.
We went through the objected documents. With regard to Exts. B2, B3, B4 and B6, the objection is valid. Ext. B5 is a communication regarding confirmation of booking and includes the complainant’s name. Ext. B7 is a copy of travel itinerary of the complainant. Hence the objection regarding these two documents that they do not pertain to the complainant is unsustainable. Ext. B8 is an application for a short stay visa. Not having a copy of the same would not vitiate the legal sanctity of the same. Hence objection regarding Ext. B8 is also unsustainable.
4. It would be pertinent, at this juncture, to recall that the dispute herein is not with regard to the imperfection or deficiency in service on the part of the opposite party vis a vis the execution portions of the tour, but solely with regard to the part where the opposite party deemed themselves entitled to retain Rs. 2,17,350/-. Hence any discussion regarding admissibility of these documents is merely pedantic or academic in nature.
Issue No. 1
5. While the complainant is aggrieved by the retention of Rs. 2,17,350/- by the opposite parties, the opposite parties claim that retention of said amount is a part and parcel of the entire operations, whether the complainant could travel or not. The opposite parties are entitled to retain the said amount.
6. Complainant has marked Exts. A1 to A5 to prove his case. Since matters that can be proved by way of Exts. A1 to A5 are undisputed, we need not look into the said documents.
The sole document that can be of any assistance to the Commission is Ext. B1, specifically, the reverse part thereof. Ext. B1 is the application form filled by the complainant. The reverse of Ext. B1 contains the Terms and Conditions under which the holidays are arranged. But the said T&C are in extremely small letters rendering them incomprehensible and unreadable. DW1, witness for opposite party has stated in his deposition that the documents are kept in Mumbai (Page 2 lines 21 to 25). What prevented production of a legible copy after filing Ext. B1 on 24/01/2019 is never stated.
When the opposite parties are bound by law to prosecute a case diligently by answering to allegations leveled against them, so as to assist this Commission (or for that matter, any fact finding Authority) to arrive at a conclusion regarding the veracity of the allegations, it is their bounden duty to take ample care and diligence while producing documents. Here, even when they were ably assisted by efficient lawyers, they failed to produce documents that would assist this Commission. We presume that even after being ably and effectively assisted by experts in the field of law, if the opposite parties resorted to production of documents that would be of no assistance to this Commission or would impediment the Commission, then the opposite party would have ulterior motives. Production of Ext. B1 in the present stage is nothing short of an abuse of the process of law and shows a disdain for the authority of this Commission.
7. What is left is the deposition of DW1. He claims that the opposite party had retained the amounts in accordance with Company policy. He claims that the entire program is base on pre-booked services, which includes Air fare, Hotel charges, sight- seeing charges, food etc.
8. The retained amount is, per opposite party, cancellation charges. But the cancellation occurred due to Visa rejection. The complainant had no hand in cancellation.
9. On going through the evidence of O.P., we do not find any material justifying the retention of amounts by the opposite party. They have miserably failed to prove either by way of documentary evidence or by oral evidence that there was a valid agreement between the complainant and the opposite party regarding charges that can be retained by the opposite parties. It is true that the opposite party may be entitled to retain a nominal registration fees, independent of the out-come of the
Visa processes, in the natural course of business dealings, for meeting the expenses that the opposite party might have incurred. But having failed to prove the quantum of such an amount, we cannot jump into a conclusion regarding such an amount.
10. Resultantly we hold that the opposite parties have failed to prove that there is any legal backing for retention of Rs. 2,17,350/-. Having failed to prove the sanctity of retention, we hold that the opposite party is not entitled to retain Rs. 2,17,350/-.
Issue no. 2
11. In view of the discussion above, we hold that there is deficiency in service and unfair trade practice on the part of the opposite party.
Issue No. 3 & 4
12. Apropos the findings in issue nos. 1 and 2 we hold that the complainant is entitled to the following reliefs:
A. The opposite party is directed to repay an amount of Rs. 2,17,350/- (Rupees Two lakhs seventeen thousand there hundred and fifty only) to the complainant with interest at the rate of 10% from 03/09/2018, till date of realization.
B. Compensation for Deficiency in service
and Unfair trade practice :: Rs. 25,000/-
C. Compensation for mental pain and agony :: Rs. 25,000/-
D. Cost :: Rs. 10,000/-
E. The aforesaid amount shall be paid within 45 days of receipt of a copy of this order, failing which the complainant shall be entitled to a solatium of Rs. 250/- per month or part thereof till the date of final payment of the amount stated above.
Pronounced in open court on this the 9th day of December, 2022.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/- Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Copy of booking details
Ext.A2 – Copy of statement of account from 1/1/18 to 30/6/2018
Ext.A3 – Copy of statement of account from 1/7/18 to 09/10/2018
Ext.A4 – Copy of lawyer notice dated 20/10/18
Ext.A5 – Original reply letter dated 26/10/18
Exhibits marked on the side of the opposite party:
Ext.B1 - Copy of booking form bearing No.10975
Ext.B2 – Copy of duplicate receipt details dated 22/6/18
Ext.B3 – Copy of duplicate receipt details dated 07/9/18
Ext.B4 – Copy of e mail communication dated 11/7/18
Ext.B5 – Copy of communication dated 12/7/18
Ext.B6 – Copy of communication dated 28/8/18
Ext.B7 – Copy of Travel itinerary
Ext.B8 – Copy of application for Visitor Short Stay Visa
Ext.B9 – Copy of communication dated 5/9/2018
Ext.B10 – Copy of communication dated 5/9/18
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant:
PW1 – Ravikumar K (Complainant)
Witness examined on the side of the opposite party: Nil
DW1 – Roy Sunny (Manager, Operations)
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
