Karnataka

Bangalore 4th Additional

CC/14/757

Mr. Prashanth S R - Complainant(s)

Versus

Travel Depot Holiday Solutions - Opp.Party(s)

10 May 2018

ORDER

Complaint filed on: 25.04.2014

                                                      Disposed on: 10.05.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027    

 

 

CC.No.757/2014

DATED THIS THE10^thMAY OF2018

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

	Complainant/s	V/s	Opposite party/s
	Mr.Prashanth S.R., S/O Late RamaswamyJois.K, Aged About 39 Years, R/at No.54, 1st Floor, 1st Main Road, 10th Cross, Srinidhi Layout,Konanakunte, Bangalore-560 062. By Sri.Adv.K.H.Thimmegowda		Travel Depot, Holiday Solutions, No.16, 2nd Floor, WGHBCS Layout, KothanurDinne Main Road, J P Nagar 7th Phase, Bangalore-078. Rep by its Proprietor/Proprietrix   By Sri.Adv.B.Sharath Kumar

 

 

PRESIDENT: SRI.S.L.PATIL

1.       This complaint has been filed by the complainant as against the opposite party directing torefund/return the entire amount of Rs.1,00,000/- with interest at 24% p.a., to pay damages of Rs.25,000/-.

2.       The brief facts of the case of the complainant are that the Opposite Party is running a business of arranging local, national and international tours, (package tours) under the name and style Travel Depot. The Complainant is also residing within the close vicinity of Opposite Party office. The Complainant submits that his family members, relatives and friends in all 15 members have decided to make a tour of North India and in this regard, he along with his friends approached the Opposite Party in the first week of April 2013 and has detailed discussion with Opposite Party’s manger about their plan. After detailed discussion, as advised by the official of the travel depot, the tour plan was prepared. The Complainant submits that the Opposite Party has agreed to arrange a 15 day package tour for the team of Complainant consisting of 15 members, to North India consisting of places, Kashi, Badarinath, Kedarnath, Agra, Delhi and Jaipur at the cost of Rs.33,000/- per head. It was agreed that the package includes travel charges, lodging, boarding and any entry fees etc., The tour schedule were also finalized which shall commences from 29.6.2013.As per his discussion with Opposite Party staff/manager and also with the Proprietrix, he has paid a sum of Rs.1,00,000/- as advance vide a) receipt No.77 dt.10.4.2013 for Rs.90,000/- b) receipt No.85 dt.15.4.2013 for Rs.10,000/-. It was further agreed that the balance amount shall be paid 15 days before the start of the tour. The Complainant submits that as requested by the Opposite Party, he met the Opposite Party wherein the Opposite Party explained to the Complainant the situation in the ChaarDham area, on account of the natural calamity such as floods, lands slides, cloud bursts the northern India, especially in the region of ChaarDhams. The Opposite Party also informed the Complainant that the proposed tour scheduled to 29.6.2013, could be postponed, considering safety and security of the travellers, and further officers/manager assured Complainant that in case the tour is postponed, the same would be re-arranged once the situation in the said area returns to normalcy.  The Complainant submits that ultimately in the third week of June 2013, the Opposite Party has informed the Complainant about the postponement of the tour, and assured re-schedule the tour and assured that the next possible dates will be informed. The Complainant further submit that as there were no information from the Opposite Party about the next possible dates of the tour, even after 2-3 months, we along with his friends visited Opposite Party’s office in first week of September 2013, and have enquired about their tour. However, the proprietrix as well as manager of Opposite Party have pleaded sorry for inconvenience and said that, they are making all efforts to organize the tour at an earliest and assured to inform the Complainant about the tour schedule at an earliest. However, the Opposite Party even today has not informed about the possible dates the fresh tour schedule and whenever the Complainant tried to contact over phone, neither the proprietrix, nor the officials have receiving Complainant’s phone calls to know about the tour. The Complainant submits that since nobody from Opposite Party side is responding, he personally visited Opposite Party office in the first week on January 2014 and has enquired about their tour programme, but the officials/staff have failed to give proper reply and the staff and other people in the office are also not allowing the Complainant to meet the proprietrix to meet and discuss the matter. The Complainant has lost faith with Opposite Party who has miserably failed to serve their customer. The Complainant and his family and friends are no more interested in the trip as the Opposite Party is not at all responding to the Complainant. Even after 8 months from the date of collecting huge money from him, the Opposite Party has failed to arrange the tour as agreed by them.The Complainant submits that fed up with the acts and attitude of Opposite Party in not arranging the tour, on 24.2.2014, he sent a legal notice through his advocate calling upon the Opposite Party to refund/return the entire amount of Rs.1,00,000/- with interest on the said amount. Having received the said notice, instead of complying with the demands, the Opposite Party caused a reply on untenable grounds. The Opposite Party has not refunded any amount as stated in his reply to the Complainant. The Complainant reserves his right to prosecute the Opposite Party under relevant provision of law for cheating, fraud and for other offences punishable under the Indian Penal Code. The Complainant submits that he is consumer as prescribed under the Consumer Protection Act and the acts of the Opposite Party in not arranging the trip as agreed by him and also the acts of the Opposite Party in not refunding amount collected by them since they have failed to conduct the tour as agreed upon by them, amounts to deficiency of service toward their customer. Hence, this complaint.

3.       Notice was ordered issue to the Opposite Party. The Opposite Party did appear and filed his version.

          4.       The sum and substance of the version filed by the Opposite Party that the complaint is not maintainable either in law or on facts. The Opposite Party denies all the allegations made in the complaint as false. The Opposite Party submits that with reference to paragraph 3 to 7 of the complaint, it is respectfully submitted that the business under the name and style “Travel Depot” was being run jointly with Raviraj.G S/o Sri KeshavaPoojari, r/o Genasina, Kumeru House, Aryapu Village, Sompya Post, PutturTaluk, Dakshina Kannada and Sri SudeshKumble S/o Sri Manamohan. Resident of No.FRF-3, Chaitrasree Palace, BilekahalliVijaya Bank Layout, Bangalore-78 who have received Rs.90,000/- on 10.4.2013 and Rs.10,000/- on 15.4.2013. They were solely responsible to conduct tour receiving balance amount as agreed with them. If the Complainant booking seat cancels, the above said persons who received amount shall be responsible to refund the amount after effecting certain deductions as per the terms and conditions mentioned in the receipt itself. If at all, the Complainant is aggrieved by the said transaction, he ought to have been initiated action against the said Raviraj G. and SudeshKumble who received an amount of Rs.1,00,000/- and they are solely responsible to conduct tour. The Opposite Party submits that he has received notice dt.24.2.2014 from the Complainant. Immediately, they made enquiries with the said Raviraj and SudeshKumble. To the shock and surprise of the Opposite Party, they learnt that the Complainant has received a sum of Rs.84,037/- on 10^th July 2013 vide cheque bearing No.349797 dt.6.7.2013 drawn on Karnataka Bank Ltd., in favour of the Complainant which has been encashed by the Complainant on 10.7.2013 and credited to the account of Complainant in CTS clearing by Corporation Bank RBI layout branch, Bangalore. Though the Complainant has received the said amount, with an ulterior motive of harassing and extracting money from the Opposite Party, he issued notice dt.24.2.2014. Immediately on 14.3.2014, the Opposite Party issued interim reply requesting to extend time till 1.3.2014 and immediately gathering information, the Opposite Party issued reply dt.20.3.2014 intimating to the Complainant and his counsel that the Complainant has already received cheque in full and final settlement and encashed it. But still the Complainant approached this Forum. The Opposite Party submits that the attitude of the Complainant substantiate that he has hand in glove with said Raviraj.G and SudeshKumble, who are now turned hostile towards Opposite Party and who might have thought that the Opposite Party may not know about the said transaction instigated the Complainant to file frivolous complaint. The Complainant has already received the said amount subjected to terms and conditions of the Opposite Party. Hence, the Complainant is not entitled to any relief prayed for in the complaint. Further as there is no any deficiency of service, this Forum has no jurisdiction to entertain this complaint. The Opposite Party submits that after more than a year from the date of cancellation of trip and after more than a year from the date of encashment of amount refunded through cheque, the Complainant came up with the above frivolous complaint. The Complainant has not approached this Forum with clean hands. The complaint is filed with an ulterior motive of harassing the Opposite Party. Hence, the Opposite Party prays for dismissal of the complaint.

          5.       The Complainant as well as the Opposite Party filed their respective affidavit. But none of the documents got marked either by the Complainant or Opposite Party. Both parties filed their written arguments. Heard both sides.

 

          6.       The points that arise for our consideration are:

          1) Whether the complainant proves the deficiency in service on the 

part of the OPs, if so, whether the Complainant isentitled for the

relief soughtfor?

 

          2) What Order?

 

          7.Our answers to the above points are as under:

 

Point No.1 :Negative

Point No.2 :As per the final order for the following

 

REASONS

          8. POINT NO.1:    We have briefly stated the contents of the complaint as well as the version filed by the Opposite Party. The Complainant has specifically pleaded in respect of the deficiency of service on the part of the Opposite Party. In this context, he has sought for the refund/return the entire amount of Rs.1,00,000/- together with interest at 24% p.a. on the said sum and an amount of Rs.25,000/- being damages and such other reliefs to which he is entitled to. The payment of Rs.1,00,000/- to the said tour organized by the Opposite Party is denied. But the say of the Opposite Party is that it is already refunded an amount of Rs.84,037/-on 10^th July 2013 vide cheque bearing No.349797 dt.6.7.2013 drawn on Karnataka Bank Ltd., in favour of the Complainant which has been encashed by the Complainant on 10.7.2013. This fact is suppressed by the Complainant by filing the complaint. To substantiate with regard to the payment of rs.84,037/- to the Complainant, the Opposite Party has produced the documents with list dt.3.7.2014 wherein document at Sl.No.1 is the certificate issued by the Karnataka Bank Ltd., for having encashed refund cheque by the Complainant which read thus:

KARNATAKA BANK LTD.,

          Date:15.06.2014

TO WHOM SO EVER IT MAY CONCERN

This is to certify that M/s Travel Depot is maintaining a current account with us bearing number 922200010000301. Further we confirm that the cheque bearing No.349797 amounting Rs.84037/- favouringMr.PrashanthS.R. was debited to their account on 10^th July 2013 which was presented in CTS clearing by Corporation Bank, RBI Layout Branch.

To satisfy the contents of the above documents, the Opposite Party has produced document No.2 in the said list which is bank statement showing the transaction. Ongoing through the bank transaction, it goes to show that on 10.7.2013, the Complainant has withdrawn an amount of Rs.84,037/-. But the say of the Complainant in his affidavit is quite different which can be seen in Para-12 which read thus:

I submit that, I have not received advance amount of Rs.1,00,000/- paid by me in the month of April 2013. The amount of Rs.1,50,000/- paid in the month of May/June 2013 for booking of flight tickets and train tickets for 20 members was refunded to me in the month of July 2013 by way of cheque and cash. Refund amount of Rs.84,037/- issued by way of cheque for cancellation of flight tickets only is disclosed by Opposite Party only to cheat and defraud me. Advance amount of Rs.1,00,000/- paid by me in the month of April 2013 was not refunded me till date. I reserve my right to prosecute the Opposite Party under relevant provision of law for cheating, fraud and for other offences punishable under the Indian Penal Code.

This fact is not pleaded in the complaint. It is settled proposition of law that what is not pleaded, it cannot be allowed to be proved. We are of the opinion that such a plea taken by the Complainant is appears to be afterthought. Moreover, the contents of the documents at Sl.No.1 and 3 in the list dt.3.7.2014 falsify the contention taken by the Complainant on the ground that “Men may tell lies, but the documents cannot”as per the observations made by the NCDRC, New Delhi in ConsumerComplaint No.93/2014 decided on 19.3.2014.  Out of the advance amount of Rs.1,00,000/-, the Opposite Party has promptly returned an amount of Rs.84,037/- by deducting applicable charges for processing the tour programme. In this context, we are of the opinion that there is no deficiency of service on the part of the Opposite Party. Hence, the complaint filed by the Complainant is deserves to be dismissed. Accordingly, we answer the Point No.1 in the negative.

9.       POINT NO.2:In the result, we proceed to pass the following:

ORDER

        The complaint filed by the Complainant is hereby dismissed devoid of any merits.

Looking into the circumstances of the case, we direct both the parties to bear their own costs.

Supply free copy of this order to both the parties.

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open forum on 10^thMay2018).

 

(ROOPA.N.R)     MEMBER	(S.L.PATIL)  PRESIDENT

 

          1. Witness examined on behalf of the complainant/s by way of affidavit:

Sri.Prashanth S.R, who being the Complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

Doc-1	Boucher of Travel Depot
Doc-2	Advance amount paid for Rs.1,00,000/-
Doc-3	Legal notice with postal receipts
Doc-4	Postal acknowledgements
Doc-5	Reply notices
Doc-6	Refund amount details for flight ticket cancellation

 

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

SahanaShet.S, Manager,who being the Opposite Party was examined.

Copies of Documents produced on behalf of OPs

Doc-1	Certificate issued by Karnataka Bank Ltd., for having encashed refund cheque by the Complainant
Doc-2	Bank statement
Doc-3	Interim reply dt.14.3.2014 issued to the legal notice dt.24.2.2014
Doc-4	Postal acknowledgement for having served the interim reply
Doc-5	Reply dt.20.3.2014 issued to legal notice dt.24.2.2014
Doc-6	Postal acknowledgements.

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL) PRESIDENT