D.O.F:04/12/2020
D.O.O:20/09/2022
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.164/2020
Dated this, the 20th day of September 2022
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
K. Karunakaran, aged 65 years,
S/o Ambu Nair (Late)
Divyadeep,
Residing near Railway Over Bridge,
Chervathur, Cheruvathur Village of : Complainant
Hosdurg Taluk, Kasaragod District,
Post Cheruvathur 671313
(Adv: Vipin.T. Jose)
And
1. Vikram Travels and Resorts India Pvt Ltd,
K.R.RAO Road,
Karangalpady, Manglore – 575003
2. H.P Shivanand,
Managing Director,
Vikram Travels and Resorts India Pvt Ltd
3. H.P Subramaniyan
: Opposite Parties
4. H.P Shantharam
[No’s 2 to 4 are children of Padmanabha,
All are residiiiiiing near P smarakam
Sri Krishna Mandir Road,
Hosdurg Village of Hosdurg Taluk,
Post Kanhangad 671315 Kasaragod District)
(Adv: Shrikanta Shety)
ORDER
SRI.RADHAKRISHNAN NAIR.M : MEMBER
The complaint is filed under section 35 of the Consumer Protection Act, 2019.
The facts of the case in brief is that the complainant had booked a tour programme organized by the Opposite Party No.1, by name PGR (Pancha Dwaraka Tour), which was scheduled to be commenced on 21.04.2020, covering a total distance of 7,000 kms, for the complainant and his family and two of his friends and their family. The complainant had transferred an amount of Rs.70,000/- on 17.02.2020 to the account of VIKRAM International Travels bearing No.36576827530 of SBI, Kodibail Branch, and the opposite party has acknowledged the receipt of the same. The complainant furnished the details of the persons to be participated in the tour
programme via whats app to the opposite party. Thereafter the opposite party has directed the complainant to deposit the balance amount of Rs.1,79,340/- and the same was paid by the complainant on 07.03.2020 by NEFT to the account No. 36552019799, of SBI Kodibial Branch of the opposite party. Thus a total of Rs.2,49,340/-was paid by the complainant to the opposite party. But in the mean time due to the outbreak of Covid -19 pandemic, the Govt. of India declared a nationwide lockdown from 25-03.2020 and the same was extended several times with travel restrictions in order to curtail the spread of covid-19. As a result, it was informed by the opposite party that the tour programme was cancelled. Immediately after the declaration of the lockdown, the complainant contacted the opposite party and requested the refund of the amount already paid. The opposite party informed that their office was closed for the time being and they would credit the amount once the lock down restrictions are relaxed. Thereafter the lock down relaxed and the complainant approached the opposite party via several whats app communications and requested the refund of the amount. The opposite party was prolonging the refund of the amount citing one or other reasons. At last the opposite party, on 03.10.2020 paid an amount of Rs.30,000/- and assured that the remaining amount would be paid shortly.
But no amount is paid so far and the opposite party is evading the calls and messages of the complainant seeking refund. The opposite parties are bound to refund the amount, at every the moment the tour was cancelled. Hence this complaint is filed for a direction to the opposite parties to pay Rs.2,19,340/- with interest and compensation and cost.
The opposite parties No.1 & 2 entered appearance and filed written Version. The Opposite parties No.3 & 4 adopted the version of the opposite parties No.1 & 2.
As per the version of the opposite parties, it is admitted that the complainant has booked a tour programme organized by the Opposite Party No.1, by name PGR (Pancha DwarakaTour), which was scheduled to be commenced on 21.04.2020, covering a total distance of 7000 kms. It is also admitted that the opposite party received a total amount of Rs.70,000/-+ Rs.1,79,000/- = Rs.2,49,340/- from the complainant , in connection with the tour programme. There after the opposite party paid advance amount for booking and arranging the transport vehicles, rooms and lodgings, restaurants, travel entrance tickets for the tour programme. But when such arrangements are done, all of a sudden lock down was announced by the government on 23.03.2020, due to the outbreak of the Covid19 and the amount invested was blocked and such amount is not got refunded to the opposite party. Thus the opposite party met heavy loss due to that.
The act of the opposite party in non conducting of the tour was not willful or intentional but due to act of god. But in the mean time the opposite party paid Rs.30,000/- to the complainant, his part of contribution of one person travel ticket fare ,in fact individual tour fare is Rs.27,400/-. Hence the complainant’s part of the amount is paid and satisfied. The opposite party are ready and willing to take the costumers to the tour programme in the year 2021, scheduled in different dates. The scheduled dates are Feb10 , 24, March 13,24, April12,19, May 3,10,17, June 7,2021, JULY 7, 2021 August 4,18.25, Sept.8,22,29 Oct.6,13,20,27 Nov.3,10,17,24,
Dec.15,22,29. Since the money paid by the complainant are previously paid to the various arrangers, the return of the amount to the complainant would cause loss and hardships to the opposite party and not possible and also due to the after effects of Covid 19. Therefore the complainant is to accept any date option to travel and if not agreed the complaint is liable to be dismissed. There is no negligence or will full act or service deficiency on the part of the opposite parties. The complainant is not entitled for any relief as prayed for and the complaint is liable to be dismissed.
The complainant filed proof affidavit in lieu of chief examination and documents
Ext. A 1 to Ext. A 9 are marked. The PW 1 was not cross examined .The Ext - A1 and A2 are the copies of Bank statements, Ext. A 3 and A4 are the screen shots of Whats app communications, Ext. A 5 is the copy of requisition form dated 10.09.2019issued by Opposite Party, Ext. A 6 is the Bank Statement. Ext A7 and A8 are the documents relating to the retirement of complainant’s wife. Ext A9 is the Holiday plan booklet issue by the Opposite Party. Ext A10 is the receipt issue by the Opposite Party.
From the side of the opposite parties, Opposite Party No.2 filed proof affidavit in lieu of chief examination as DW1 and documents Ext. B1 and Ext.B2 are marked. He was cross examined as DW1. Ext.B1 is the Bank Statement, Ext.B2 Tour Programme Brochure.
Based on the pleadings and evidence of the rival parties in this case the following issues are framed for consideration.
1. Whether there is any service deficiency on the part of the opposite parties?
2. If so, what is the relief?
For convenience, both these issues are considered together.
Here the specific case of the complainant is that he had paid a total of Rs.2,49,340/- to the opposite party for the tour programme and the same was cancelled due to the lockdown and travel restrictions ordered by the government in order to curtail the spread of covid-19 .
The opposite party is bound to refund the amount, at very the moment the tour was cancelled. Even though he complainant approached the opposite party via several whats app communications and requested the refund of the amount, the opposite party was prolonging the refund of the amount citing one or other reasons. At last the opposite party, on 03.10.2020 paid an amount of Rs.30,000/- and assured that the remaining amount would be paid shortly.
But no amount is paid so far and the opposite party is evading the calls and messages of the complainant seeking refund. Hence this complaint is filed for a direction to the opposite parties to pay Rs. 2, 19,340/- with interest and compensation and cost. The Opposite Party admit the booking of the tour programme by the complainant and the receipt of a total amount of Rs.70,000/-+ Rs. 1,79,000/-=Rs.2,49,340/- from the complainant , in connection with the tour programme. But Opposite Party submit that there after the opposite party paid advance amount for booking and arranging the transport vehicles, rooms and lodgings, restaurants, travel entrance tickets for the tour programme. But the above amount invested was blocked and such amount is not got refunded to the opposite party. Thus the opposite party met heavy loss due to that. The act of the opposite party in non conducting of the tour was not will full or intentional but due to ACT OF GOD . But in the mean time the opposite party paid Rs.30,000/- to the complainant, his part of contribution of one person travel ticket fare ,in fact individual tour fare is Rs.27,400/-. Hence the complainants part of the amount is paid and satisfied. The opposite party are ready and willing to take the costumers to the tour programme in the year 2021, scheduled in different dates. The scheduled dates are Feb10 , 24, March 13,24, April12,19, May 3,10,17, June 7,21, JULY 7, 21 August4,18.25, Sept.8,22,29 Oct.6,13,20,27 Nov.3,10,17,24, Dec.15,22,29. Since the money paid by the Complainant are previously paid to the various arrangers, the return of the amount to the complainant would cause loss and hardships to the opposite party and not possible and also due to the after effects of Covid 19. Therefore the complainant is to accept any date option to travel and if not agreed the complaint is liable to be dismissed. There is no negligence or will full act or service deficiency on the part of the opposite parties. The complainant is not entitled for any relief as prayed for and the complaint is liable to be dismissed.
Here the fact is that the tour programme was cancelled not because of any negligence of the opposite party but due to lockdown and travel restrictions imposed by the government, in order to curtail the spread of Covid19. That is admitted by the complainant also. The main issue is that whether the opposite party is liable to refund the amount received by him from the complainant. Even though the opposite party submit that he had spent the amount for booking and arranging the transport vehicles, rooms and lodgings, restaurants, travel entrance tickets for the tour programme, they did not adduce any reliable evidence for that. No document such as receipt or bank account statement is produced to show the payment towards such booking or arrangements. So in the absence of any reliable evidence, it cannot be held that the opposite party had spent the amount received from the complainant towards such booking or arrangements.
Another argument of the opposite party is that they have paid Rs.30,000/- to the complainant, and that is his part of contribution as the individual tour fare is Rs.27,400/-,which is paid and satisfied , leaving no due. The Opposite Party further argue that for the refund of the respective share of other members of tour party, everyone has to file individual complaint. This argument is not acceptable since the payment was made by the complainant and not by individually. It is from the account of the complainant, he himself paid the entire amount. The documents,
Ext - A1 and A2 which are the copies of Bank statements would prove that aspect. So such arguments of Opposite Party are not acceptable.
Another case of the opposite party is that they were ready and willing to take the costumers to the tour programme in the year 2021 during different dates and the complainant could have accepted the option and go for the tour programme at that time. But there is no evidence to prove that such a tour programme was actually conducted for any other willing costumers. The witness DW-1, the opposite Party No.2 would depose during cross examination that no such tour was held.
.
Therefore with the facts and circumstances of the case, this commission is of the view that the opposite parties are liable to refund the balance amount of Rs. 2,19,340/-.to the complainant.
Admittedly, the tour programme was cancelled not because of any negligence on the part of the opposite party. Therefore it is not fair to order them to pay compensation for mental agony and sufferings of the complainant. But since the refund of the balance amount is delayed the complainant is entitled for the interest on the amount.
In the result the complaint is allowed in part, directing the opposite parties to pay
Rs. 2,19,340/- to the complainant with interest at the rate of 8% per annum from
04.12.2020, the date of complaint to the date of payment. The opposite parties are also directed to pay Rs. 5,000/- (Rupees Five thousand only) towards costs.
Time for compliance is 30 days from receipt of the copy of the Judgement.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1 &A2- Copies of Bank statements
A3 & A4 – Screen shot of whats app communications
A5- Reservation requisition form.
A6- Bank statement
A7 & A8- Documents relating to the retirement of complainants wife.
A9- Holiday plan book
A10- Receipt
B1- Bank statement
B2- Tour Programme Brochure statement.
Witness Examined
Dw1- H.P Shivanand
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
