Order No. 18 dt. 24/11/2016
The case of the complainant in brief is that the complainant intended to participate in the proposed Euro Summer Tour for 16 days in May-June 2012 as organized by o.p. The complainant deposited a sum of Rs.60,000/- on 8.12.12 for registration. The complainant also deposited a further sum of Rs.1,50,014/- and Rs.96,756/- on 5.4.12 and 11.5.12 respectively. In total the complainant paid Rs.3,42,770/- and it was decided that the tour to be commenced on and from 21.5.12. The complainant suddenly suffered a cardiac arrest on 19.5.12 and he was immediately hospitalized on doctor’s advice and on 19.5.12 the complainant felt that it was not possible for him to attend the said tour programme and accordingly, informed the tour manager about his incapability to join the tour programme for his sudden illness. The complainant’s daughter also informed the said fact to o.p. On 21.5.12 the complainant was informed by a letter dt.21.5.12 that the o.p. had already advised the concerned airlines and overseas operator to consider the complainant’s case sympathetically and the complainant had the expectation that he will get the substantial amount towards the return from the overseas operator.
After releasing from the hospital the complainant had a talk with the Managing Director of the company requesting him for refund of the amount and he was assured that he will be refunded with the unused money. In spite of repeated request no action was taken by o.p. ultimately the complainant through an advocate demanded the said amount of rs.3,42,770/- but no money was returned to the complainant for which the complainant had to file this case praying for return of Rs.3,12,770/- also interest @ 15% of he said amount and cost of the proceedings.
The o.p. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that after appearing in the case o.p. filed a petition regarding the maintainability of the case which was rejected by this Forum against the said order a revision application was filed whereby Hon’ble State Commission upheld the order and directed that the said point can be raised at the time of hearing of the case. It was stated by o.p. that the complainant failed to join the tour schedule on the plea of his alleged illness and opted for cancellation of booking and the intimation was given to o.p. merely a day prior to the schedule date of departure and the complainant claimed for refund of entire money deposited by him towards cost of the tour. The o.p. admitted that the complainant paid Rs.3,42,770/- and demanded a sum of Rs.3,12,770/- less the air fare from Kolkata-Dubai amounting to Rs.42,770/-. The o.p. took up the matter with the concerned airlines and could arrange for certain amount of Rs.35,742/- which was refunded to the complainant on 24.1.13 and the same was acknowledged and encashed by the complainant without raising any protest thereto. Since the complainant accepted the amount without raising any protest and encashed the same speaks of full and final settlement of his claim and thereby ceases to be a consumer too. It was stated that since the complainant did not avail the services question of deficiency in service on the part of o.p. never arose. The o.p. acted diligently and there was latches on their part and the complainant will not be entitled to get the relief as prayed for.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant paid the amount of Rs.3,42,770/-.
- Whether the complainant suffered cardiac arrest for which he was refrained from attending from the said tour.
- Whether the complainant will be entitled to get the refund of the amount paid by him.
- Whether the complainant will be entitled to get any relief as prayed for.
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
The complainant himself argued his case who stated that in order to avail of a tour programme conducted by o.p. he booked for Euro Summer tour for 16 days which was conducted in May-June 2012 and for that purpose he paid Rs.60,000/- initially, therefore paid Rs.1,85,014/- and Rs.96,756/-, in total he paid Rs.3,42,770/-. Since he suffered a cardiac arrest on 19.5.12 and he had to undergo treatment at Apollo Gleneagles Hospital he could not avail of that tour programme. Immediately after such heart attack the complainant’s daughter informed the said fact to o.p. and his son in law also informed over phone to o.p. and a letter was sent to o.p. praying for return of the amount but o.p. did not refund despite verbal assurance, ultimately the complainant had to file this case.
The complainant further argued that o.p. offered a sum of Rs.35,472/- which was accepted by the complainant and on the basis of the said facts and circumstances the complainant prayed for refund of the amount of Rs.3,12,770/- and also interest @ 15% per annum and compensation.
In order to prove the claim of the complainant, he filed some documents including the receipts and in the affidavit on evidence the complainant stated the entire fact. On the basis of the said facts and circumstances the complainant demanded the said amount.
Ld. lawyer for the o.p. argued that the complainant cannot claim that there was deficiency in service on the part of the o.p. Immediately after the service of notice upon the o.p., the o.p. filed a petition regarding non maintainability of the case and this Forum held that the maintainability of the case will be taken up at the time of final hearing of the case. Against the said order o.p. preferred a revision application and upon hearing affirmed the said order. Ld. lawyer for o.p. emphasized that it would be evident from the record that the complainant failed to join the tour schedule on the plea of his illness and opted for cancellation of booking and the complainant informed the said fact merely a day prior to the scheduled date of departure and the claim for refund of entire money deposited by the complainant towards the cost of the tour. Since there was no deficiency in service on the part of the o.p. the case is not maintainable and ld. lawyer emphasized that o.p. after coming to know the cancellation of the tour took up the matter with the concerned airlines and could arrange for refund of certain amount of Rs.35,472/- which was refunded to the complainant on 24.1.13 and encashsed the same by the complainant without raising any objection. Since the complainant accepted the amount without any objection and the encashment of the amount speaks of full and final settlement of the claim of the complainant and thereby ceases to be a consumer to. In view of the facts and circumstances as stated above o.p. prayed for dismissal of the case.
Considering the submissions of the respective parties it appears that the complainant booked for having a tour through o.p. and for that purpose the paid Rs.3,42,770/- but unfortunately he became seriously ill due to heart attack and he was treated at Apollo Gleneagles Hospital. The complainant in order to prove the said fact stated in evidence elaborately as to where he was treated and the doctor who attended the said patient during the time of his hospitalization for the treatment in the said hospital. It has not been disputed by o.p. that the complainant has not paid the amount of Rs.3,42,770/-, the complainant denied that he received any money from o.p. but o.p. claimed that o.p. paid an amount of Rs.35,472/- which the o.p. could manage from the airlines for the return of the amount to the complainant. The complainant has disputed the said fact. Even if for the sake of argument the said amount was paid by o.p. simply because the complainant at the time of receiving the amount failed to raise his objection regarding receiving of the amount towards the entire claim of the complainant it cannot be said that the complainant had accepted the money on full satisfaction of his demand. It is an unfortunate event that the complainant could not avail of the said tour programme in spite of payment of Rs.3,42,770/-. The o.p. failed to prove that due to cancellation of the tour by the complainant there was any financial loss suffered by o.p. or o.p. had to pay the amount for the booking of the accommodation of the complainant and his wife in the hotel or any expenditure was incurred for air travel for the complainant and his wife. The o.p. failed to produce any document to that effect. Therefore it cannot be said that the o.p. suffered any financial loss due to cancellation of the tour by the complainant. It is relevant to mention here that immediately after the certain heart attack of the complainant the said fact was communicated to o.p. and o.p. assured the complainant’s son in law and daughter that the amount will be returned but no action was taken on behalf of the o.p. Since, the complainant demanded the said amount and since no action was taken on the part of the o.p. the complainant had to file this case. Due to unfortunate incident for which the complainant had no control for his certain illness of heart attack and he had to incur huge expenses for his illness, in this circumstances if the complainant due to his sudden illness failed to attend the said tour programme it cannot be said that there was any intention on the part of the complainant to cancel the tour from his end. Accordingly we hold that the complainant had to file this case since the o.p. failed to refund the amount paid by the complainant and certainly there was deficiency in service and unfair trade practice on the part of the o.p. the complainant will be entitled to get the amount paid by him minus the amount paid by o.p. i.e. Rs.3,07,298/- along with compensation and litigation cost. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.591/2013 is allowed on contest with cost against the o.p. The o.p. directed to refund the complainant a sum of Rs.3,07,298/- (Rupees three lakhs seven thousand two hundred ninety eight) only along with compensation of Rs.30,000/- (Rupees thirty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
