DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.405/2013
1. Sh. Surendra Mahto
S/o Sh. Bikram Mahto
R/o 481-P, Sector-27,
Gurgaon, Haryana-122002
2. Sh. Rakesh Thukral
S/o Sh. C. D. Thukral
R/o 220, SFS Flats,
Rajouri Apartments, Rajouri Garden,
New Delhi-110064 ……Complainants
Versus
Thomas Cook (India) Ltd.
Through its Manager
22, First Floor,
MGF Metropolitan Mall
Saket, New Delhi-110017 ……Opposite Party
Date of Institution : 19.07.13
Date of Order : 02.03.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
Sh. S. S. Fonia, Member
O R D E R
Sh. S. S. Fonia, Member
Brief facts of the case are as follows:-
The Complainants were proposed by the OP for premium holiday package at Hayat Regency Hotel on 02.03.13 for the holiday @ Rs.2 lakh per person for 8 persons of their families. The package was booked as “Riviera Extravaganza Europe” for 15 days said to be commencing on 30.05.2013. The Complainant No.1 paid Rs.1,99,996/- in advance vide receipt No.107118 & 1017120 dated 12.03.2013 and Complainant No.2 paid Rs. Rs.1,99,996/- vide receipt No.107119 & 1017121 dated 12.03.13 departing on 30.5.2013. The OP failed to provide itinerary despite receiving booking amount. The Complainants followed up the matter through various modes such as email, telephone and personal visit to the office of OP till April, 2013. Ultimately on 03.04.13, the Complainants cancelled their booking and demanded refund of entire booking amount from the OP vide email dated 03.04.13 due to failure of the OP to provide firm confirmation for the Europe Tour package. The OP vide email dated 09.04.13 stated that “we would like to apologize for the delay caused in sending the same. As per our conversation we have worked the revised itinerary on the basis of your travel plans”. It is stated by the Complainants that the OP was unable to execute the original booked tour package i.e. Riviera Extravaganza Europe for the Complainants and without refunding the booking amount OP started offering different package. The Complainants have further stated that after detailed telephonic discussion and several personal visits they again confirmed to the OP about original Riviera Extravaganza Europe said to commence on 30.05.13 from Delhi vide their email dated 17.04.13. This was confirmed by the OP by their email dated 22.04.2013. This commitment is alleged to be not fulfilled by the OP and the Complainants have further alleged about delaying tactics adopted by the OP. Eventually, the OP vide their email dated 07.05.2013 intimated to the Complainants about cancellation of the aforesaid tour programme with reasons that “ we would like to inform you that we have received message today from our head office in Mumbai that the tour you had booked Riviera Extravaganza schedule to leave on 30.05.2013 is not operating due to operational reasons. We understand your displeasure but we could not have the operative strength at the end. Hence, they are not operating the tour. Apologies for the same. We are working on the various alternative options for the same since the UK Visa has been applied and we would accommodate you on the other premium tour. Sincere apologies for the same but we are trying to operate the same but could not be done due to operational issues.” The Complainants have inter-ala alleged unfair trade practice on the part of OP and have prayed as under:-
- Direct the OP to pay Rs.7,50,000/- to each Complainant towards mental pain, agony and reputation suffered by them at the hands of the OP.
- Direct the OP to refund a sum of Rs.1,99,996/- alognwith interest @ 24% per annum to each Complainant deposited by them with OP on 12.03.2013
- Direct the OP to pay a sum of Rs.50,000/- to each Complainant towards litigation and other expenses incurred by them.
On the other hand, OP in rival submissions has denied the allegations as false, baseless and mischievous without any basis and cogent reason. The OP has further questioned the quantification of compensation to be awarded on a rational basis on various grounds including any loss suffered by the Complainants. The OP has further relied upon the following terms and condition as set out in the booking form under the heading “itinerary changes” that “we reserve the right to change the departure date or cancel the departure due to lack of enough number of passengers” with further conditions of travel that “the tour will be operated subject to minimum of 25 full paying passengers travelling together”. The representative of the OP is said to have sent an email on 19.04.13 to the Complainants stating that tour was operating on the same date and requested the Complainants to send the documents for U.K. Visa so that the processing of Visa could be started. It is further submitted that they called the Complainants either to take refund of the tour subject to and after deducting the Visa charges and other expenses and after deduction of the amount in accordance with the cancellation of policy but the Complainants did not receive the call not even called them. OP has prayed for dismissal of the complaint with cost.
Complainants have filed rejoinder to the written statement filed by the OP reiterating the averments made in the complaint. The Complainants have categorically denied provisions of any terms and conditions as set out in the booking form regarding right of OP to change the departure date or cancel departure due to lack of enough number of passengers and also the condition that tour will be operated subject to minimum of 25 full passengers travelling together.
Complainant No.1 & 2 have filed their own affidavit in evidence. They have relied upon the documents Ex. CW-1/A, CW-1/B, CW-1/C, CW-1/D, CW-1/E & CW-1/F.
On the other hand, affidavit of Sh. Jitender Choudhary, General Manager has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties. The OP has relied upon the judgment in the case of Commercial Officer, Office of Telecom District Manager, Patna Vs. Bihar State Warehousing Corporation reported in 1 (1991) CPJ 42.
Now, we straightaway come to the question, whether the complaint falls within the ambit of the Consumer Protection Act, 1986 and, if so, whether the Complainants are entitled for any relief as prayed for?
Admittedly, the OP offered a tour package viz. “Riviera Extravaganza Europe” for 15 days which was to be commenced on 30.05.13 for consideration of Rs.2 lakh each family member, consisting family of 8 persons. The Complainants paid total sum of Rs. 1,99,996/- each in advance to the OP for the said tour package (copy Ex.CW-1/A, CW-1/B, CW-2/A, CW-2/B). However, the OP did not provide the complete itinerary. The Complainants vide mail dated 09.04.13 communicated to the OP regarding non-materialization of the travel plan and warned it to cancel the trip due to their inability and refund the advance money if further option was not suiting and lucrative to them (copy Ex. CW-1/C) and further the Complainants vide their email dated 11.04.13 instructed the OP to refund their deposited amount (copy Ex.CW-1/D). The OP vide their mail dated 09.04.13 apologized for the delay and again offered them to work out other option (copy Ex. CW-1/E). This was further communicated by the OP vide its email dated 22.04.2013 that the package Riviera Extravaganza Europe was operating on 30.05.2013 but on 07.05.13 OP intimated to the Complainants that the said tour package was not operating as per information received from their head office at Mumbai (copy Ex. CW-1/F).
We have carefully examined the material placed on the record and considered the arguments advanced on behalf of both the sides. We hold that valid consumer dispute exists between the Complainants and the OP. Undisputably the OP failed to arrange “Riviera Extravaganza Europe” for 15 days which was to be commenced from 30.05.2013 and retained the advance of Rs. 1,99,996/- each from 12.03.2013 and continuing to do so. In absence of any documentary proof regarding terms and conditions of the tour package and refunding advance after deducting visa charges, we are not inclined to accept the version of the OP that they could change the departure date or cancel a departure due to lack of enough number of passengers subject to minimum of 25 full paying passengers travelling together. OP has not only failed to materialize the tour package as promised but also retained substantial amount of Rs.3,99,992/- without any cogent and valid reasons for a considerable time.
In view of the above discussion, we hold that the OP has committed deficiency in service as much as their failure to arrange the aforesaid tour and not refunding the advance paid to them for a considerable period of more than 3 years. Accordingly, we allow the complaint and direct the OP to refund Rs.1,99,996/- to each Complainant (total Rs. 3,99,992) alongwith simple interest @ 6% per annum from the date of filing of the complaint i.e. 19.07.2013 and a sum of Rs. 15,000/- to each Complainant towards mental agony and harassment suffered by them including cost of litigation within a period of 30 days from the date of receipt of copy of this order failing which the OP shall become liable to pay Rs. 1,99,996/- to each complainant alongwith interest @ 15% p.a. from the date of filing of complaint till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 02.03.2016
(NAINA BAKSHI) (S.S. FONIA) (N.K. GOEL) MEMBER MEMBER PRESIDENT