Date of Filing: 14/08/2018 Date of Order:28/02/2019 BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27. Dated:28th DAY OF FEBRUARY 2019 PRESENT SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT SRI D.SURESH, B.Com., LL.B., MEMBER COMPLAINT NO.1368/2018 COMPLAINANTS : | | HARI PRAKASH, Aged 59 years, 303 Sipani Classe 1, 8th Block, Near Koramangala Police Station, Koramangala, Bangalore 560 095 Ph: 8879667344 Mail:hariprakash1958@gmail.com. (Complainant-In person) | |
Vs OPPOSITE PARTIES: | | WELLNESS TOURISTIK, Door No.54/697/0 1st Floor, Kumaranasan Road, Chochin 682017. Ph: 9656148215,9207748215. Email: info@wellnesstouristik.com. (Sri Harinee.K.Meda Adv. for O.P) | | | | |
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ORDER
BY SRI.H.R.SRINIVAS, PRESIDENT.
1. This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not providing accommodation in the boat house as agreed though has collected Rs.14,500/- from him and hence for the refund of the same and Rs.5,000/- towards the interest and other expenditure and for other reliefs as this forum deems fit under circumstances of this complaint.
2. The brief facts of the complaint are that: Complainant along with three other members of his family booked for tour with OP from 24.12.2017 to 29.12.2017 to visit Munnar, Thekadi, Alleppey and Kumarakom in Kerala for which OP sent a final rate for Rs.58,000/- through email dated 08.12.2017 and an advance amount of Rs.25,000/- was paid through bank on 08.12.2017 and full payment was made to the OP. The bookings were made online from Bengaluru. The travel agency forwarded the voucher (four) in numbers on 23.12.2017 through mail. They stayed in hotels at Munnar and Thekadi as per the programme from 24.12.2017 to 26.12.2017. The stay in house boat was originally planned on 27.12.2017 but same was reschedule by mutual consent to 29.12.2017. Thereafter they availed the hotel facility at Kumarakom on 28.12.2017 as per the original tour programme. They are supposed to stay in the house boat as per the rescheduled programme on 29.12.2017.
3. However, one Deepak belonging to OP informed them that they could not make arrangements as per the promise to reside in the house boat and they are ready to refund Rs.14,500/- as compensation. For which, left with no alternate complainant agreed. The said Deepak and another lady member of the accounts department of O.P requested him to send the bank details so that they can arrange for refund of the said money. The discussion took place over the phone when they were on tour. The complainant informed them that he will be returning to Bengaluru on 30.12.2017 and send the bank details and on 31.12.2017 he sent the same to them. He has recorded the said telephone conversation regarding the OP agreeing for refund of Rs.14,500/-. An SMS was also sent on 25.01.2018 from Deepak of OP informing that: “Sir checked with account they are still following up with House boat payment, it may few days more, Don’t worry I will make sure your money will be credited”.
4. Afterwards inspite of repeatedly contacting OP, O.P did not refund the same, for which, he has sent an email on 01.03.2018 and made several calls over the phone. On each and every occasion they used to make a promise that they would be refunding the amount. Ultimately informed that since the Vendor has not paid the same, they cannot repay it. His contract for the tour and the house boat is with the Op only. Hence there is deficiency in service on their part and hence the complaint.
5. Upon service of notice, O.P appeared before the forum through his advocate. Advocate has filed memo of appearance. Inspite of getting several opportunities, OP did not file the written version. Hence the forum considered as no version to be filed by O.P and recorded the evidence of complainant who filed his affidavit evidence and 9(nine) documents as per Ex.P1 to P9 got marked. Arguments Heard. The following points arise for our consideration:-
1) Whether the complainant has proved
deficiency in service on the part of the
Opposite Party?
2) Whether the complainant is entitled to
the relief prayed for in the complaint?
6. Our answers to the above points are:-
POINT NO.1: In the Affirmative
POINT NO.2: Partly in the Affirmative.
For the following.
REASONS
POINT No.1:-
7. Upon perusal of the complaint, the affidavit evidence and the documents, it becomes clear that the complainant booked tour for four persons with OP from 24.12.2017 to 29.12.2017. As per the tour itinerary they were to spend time in a deluxe house boat on 27.12.2017 and 28.12.2017 and have paid a sum of Rs.58,000/- as per Ex.P2. Ex.P3 is the receipt issued by OP regarding receipt of Rs.25,000/-. Ex.P4 and P5 are the email correspondences regarding issuing of vouchers which also contains the copy of the voucher. From this, it becomes clear that the complainants had booked two bed deluxe rooms in Blue Green house boat. Ex. P1 and P6 are the conversation over phone and undertaking that they would refund a sum of Rs.14,500/-. Ex P7, P8 and P9 are the email correspondences regarding demand made by the complainants regarding the refund.
8. When all these documents are taken into consideration, especially Ex.P1, it becomes clear that OP failed to provide a house boat stay to the complainant on 29.12.2017 and further due to the said lapse, agreed to refund Rs.14,500/- and did not pay the same inspite of repeated demand and request. Hence there is deficiency in service in not providing the house boat stay as agreed, and unfair trade practice in not returning the amount.
9. The contention of the OP as per the allegations made in the complaint that they are not in a position to refund the amount as their Vendor did not return the money, cannot be a ground for not refunding the amount agreed.
10. If at all OP had refunded the amount as assured by it, it would have after appearing before this Forum through his counsel would have filed the version contending that they have refunded the amount and would have filed suitable documents to that effect and would have contended that the complaint is frivolous or vexatious. Inspite of appearing through its advocate, it kept quite without filing its version/objection for which we have to infer that the OP has not refunded the amount. The agreement/contract is between the complainant and OP and hence we answer Point No.1 in the affirmative and OP is bound to refund Rs.14,500/- along with interest at 12% per annum from 29.12.2017 and further the act of the OP made the complainant to approach this Forum by spending time, money and energy for which we are of the opinion that a sum of Rs.5,000/- towards damages and Rs.2,000/- towards litigation expenses if ordered to be paid to the complainant by the O.P. would meet the ends of justice. Hence we answer Point No.2 Partly in the Affirmative and pass the following:-
ORDER
1. The Complaint is allowed in part with cost.
2. OP i.e. WELLNESS TOURISTIC Represented by its Authorized signatory is hereby directed to pay to the complainant Rs.14,500/- along with interest at12% per annum from 29.12.2017 till the date of payment of full amount.
3. O.P is also directed to pay Rs.5,000/- towards damages and Rs.2,000/- towards litigation expenses.
3. The O.P is hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
4. Send a copy of this order to both parties free of cost.
Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 28th FEBRUARY 2019)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 | Sri Hari Prakash - Complainant |
Copies of Documents produced on behalf of Complainant/s:
Ex P1: Notarized copy of Transcript telephone conversation dated 28.12.2017.
Ex P2: Notarized copy of quotation from M/s Wellness dated 08.12.2017.
Ex P3: Notarized copy of receipt dated 08.12.2017.
Ex P4: Notarized copy of Request mail for vouchers dated 22.12.2017.
Ex P5: Notarized copy of vouchers dated 23.12.2017.
Ex P6: Notarized copy of mail details dated 31.12.2017.
Ex P7: Notarized copy of mail for refund dated 23.01.2018.
Ex P8: Notarized copy of mail sending recorded voice 01.03.2018.
Ex P9: Notarized copy of SMS sent by Mr.Deepak.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
- Nil -
Copies of Documents produced on behalf of Opposite Party/s
- Nil -
MEMBER PRESIDENT
A*
