ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the complainant filed by the Complainant against the Opposite parties (herein referred to as ops) under Section 35 of the Consumer Protection Act 2019 for the deficiency in service in not refunding Rs.2,83,099/-  which was received by the OP in respect of the tour to be conducted and for refund of the same along with court costs and other relief and compensation Rs.3,58,099/- for causing mental agony, hardship inconvenience and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that: the complainant wanted to go for a tour of European Countries by hiring the service of OP and contacted them during January 2020.  Afterwards, after collecting the details of the tour, paid a sum of Rs.2,83,099/- through credit card on 31.01.2020. The European tour was scheduled in the month of May 2020. OP cancelled the said trip due to COVID 19 pandemic lockdown and rescheduled the same without intimating the date.  Complainant requested OP on 06.04.2020 and enquired about the reschedule of the trip. The same was responded on 13.04.2020 stating that the credit shell certificate would be sent and after complete opening of the lockdown the European trip would be rescheduled and further informed that there is no refund of the amount paid. When she approached the OP for refund of the amount paid i.e. Rs.2,89,099/- OP informed that no refund is possible and a reschedule of the trip would be made with credit note for Rs.2,66,599/- by deducting a sum of Rs.16,500/- for rescheduling the trip. 

3.     The act of OP in not refunding the amount , amounts to deficiency in service, unfair trade practice which has caused mental agony, financial loss and hence prayed the commission to allow and direct OP to refund the amount received from her and for compensation.

4.     Upon the service of notice OP appeared before the commission through their advocate one Rahul Shekar and filed the version contending that the complaint is not maintainable either in law or on fact and filed on a false, frivolous and vexatious grounds.  The matter in dispute is of civil in nature, and the civil courts alone has jurisdiction to decide the case. Further the Forums at Bangalore or the civil courts at Bangalore have no jurisdiction to decide this case/complainant as per Clause 17 in the terms and conditions. The jurisdiction for any litigation is before the court at Mumbai only.

5.     Complainant has completely gone through and read and understood, agreed and accepted the terms and conditions of the payment to and the repayment of the amount and also the terms and conditions of the cancellation. The complainant has failed to implead the State of Maharashtra, Union of India as they are necessary parties, as they imposed travel restrictions and lock down due to pandemic. OP is a registered company doing business in organizing tours and travels.  It is a practice followed by OP and all service procedure for the international group tours and domestic tours to plan well in advance making all the requisite arrangement such as Air/Railway booking, transport arrangements from one destination to another destination locally, hotels, beverages and food arrangement sightseeing attractions at relevant spots. Normally international tours are planned one year in advance and booking are accepted at least 9 months in advance in order to provide maximum benefits to the tour participants and with an intention to provide maximum benefits for which OP books air travel hotel accommodation and tour related services well in advance.  Complainant booked the group tour when 40 to 80 travelers travel in the same flight. 

6.     In view of the unforeseen COVID 19 situation they agreed rescheduled the present booking to a future possible date with effect from March 25, 2020 of its participants including the complainant.  Complainant herselves on her own choice approached OP for a tour to European Country. They themselves agreed to the terms and conditions and affixed their signature which terms are binding on both the parties.  They collected Rs.2,83,099/-.

7.The entire nation and also Maharastra Government announced lockdown on 23.03.2020 due to which the travel industry became stands still. Air traffic movement came to a granding halt. There was a lot of restrictions imposed by the citizens of the country. Hence OPs displayed on their website the travel notes that the end of every appraising the situation and their inability to arrange tours till restrictions are removed.  On 14.09.2020 OP appraised the complainant and issued “Credit Shell Certificate” along with mail explaining the situation, wherein, OPs were forced to issue such certificate for the simple reason that the consideration received from the complainant have been paid to the VENDORS at destination for making arrangement who pleaded their inability to refund the advance amount.  The credit shell was issued to be utilized up to January 2022 which was further extended till 31st December 2024. Most of the travelers considering the difficult situation placed by everyone, accepted the credit shell certificate.  Some of them demanded 100% refund together interest.  There is no question of refunding of 100% amount for the simple reason that they have spent towards administrative expenses up to 20.03.2020 and passed substantial amount to its counterpart abroad and locally who refused to return the amount.  OPs have actually paid the GST to the Government to the extent of 25% of the amount.  In consideration of the pandemic situation and in the larger interest of the participants, they extended credit shell facility up to 31.12.2024 and further the tourist can transfer the credit shell facility to any person of their choice and they can utilize the proceeds of the credit shell certificate to any international or domestic flights, and even tourist can encash 50% of the amount of the credit shell certificate and the remaining for any international or domestic tours. 

8.     In the decision by the Hon’ble NCDRC, it has allowed OP to deduct 80% of the tour cost in case of cancellation. The reschedule of the tour is in accordance with the terms and conditions understood and signed by the complainant.  

9.     In case of force majeure, OP has reserved the right to collect other additional charges and no refund shall be payable in such a situation.  Neither Union of India nor the State Government have made provision for the travelers and to the organizers to settle the claim.  Complainant could not attend the tour because of the travel instruction of the lock down imposed by the Central and State Government. Hence there is no fault upon OP causing mental agony to the complainant.  Complainant has received 60% cash benefit for the early benefit beneficiaries. They have not caused any negligence, unfair trade practice, deficiency in service or non-cooperation with the complainant. OPs are not liable to pay compensation as claimed and also towards litigation expenses.  Due to force majeure, they are not bound to refund the amount. They have lost huge amount due to COVID situation in respect of the claim made by Jet claim liquidation by King Fisher Airlines and suspension of Air Maritious and Thai Airways. 

10.   They have been issuing travel notes every month to the travelers keeping the update. They have incurred expenses of more than 25% of the amount paid by the complainant to the said tour.  Denying all the allegations made against them prayed the Commission to dismiss the complaint by imposing compensation and costs.

11.   In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

12.   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 & 2:-

13. We have perused the documents produced and also the affidavit evidence adduced. It is not in dispute that the complainant booked the ticket with ops by paying Rs.2,83,099/-.  It is also not in dispute the said tour could not be conducted by op due to the pandemic situation all over the world and many countries including India banned travel to and from it.  It is also be noted here that, the complainant booked the ticket for European Countries for the tour to commence on during May 2020 whereas the Government of India brought Lockdown on 24/03/2020, on the entire activities whether it is business, travel or hospitality which where closed in its entirety and no activities were allowed to be carried out in order to contain the spread of CORONA VIRUS. In view of this it also banned the flights, to various countries from India also banned the landing of the flights from other countries. When such being the situation, there could not be any tour to be arranged and performed.

14. Ex-P2 and R-4 produced by the complainant and OP which is a credit shell certificate wherein it is mentioned that it has received Rs.2,83,099/- from the complainant towards the cost of the tour. It is mentioned in the said cost sheet that rescheduling charges as Rs.16,500/-, zero amount towards VISA charges, VFS, and zero charges in respect of other charges and has issued a credit shell by forwarding Rs.2,66,599/- to the complainant. Though it has produced various documents regarding terms and conditions of the tour refund policy lockdown orders, by the Government of India notice for travellers 9 in numbers mentioned as travel notes, though they have claimed that, advance booking for hotels, lodging, meals, transportation has been paid the said documents are not produced. 

15.   It is not made clear whether out of the amounts received by the complainant, ops have made specific arrangements for the complainant for the complainant. If may be true that ops have incurred administrative expenses and other charges of making arrangements. Whereas no document worth filed to show that they have booked hotels, lodges, for staying for the complainant and also for transportation and cruise charges at destination. Even though op has claimed that it has to pay GST OF Rs.16,800/- each, in view of the pandemic situation, the Government of India cancelling the all the flights and ordering the airlines to refund the entire amount without any cost, we are of the opinion that even the GST collected have been ordered to be refunded to the concerned persons. It is to be noted here that ops have not booked air tickets and not processed for and to obtain VISA for the complainant, for which no documents are produced.

16.   In view of the pandemic situation still not eased out, and there is still fear in the minds of people to travel abroad, one cannot expect the complainant to travel in a future date. OP cannot compel the complainant to travel in the arranged tours by keeping their amount. No documents worth believing has been produced by OP to show that they have spent money for making arrangements. In view of this, considering the entire situation caused due to the pandemic situation and the complainant not in a position to take a deferred tour and further op having made no arrangements and not incurring any expenses, for some office and administrative expenses, we are of the opinion that, if a sum of 15% amount out the entire amount paid by the complainant if deducted for the expenses incurred by OPs and refund the balance amount to the complainant would be just, proper and reasonable under the circumstances.

17.   It is to be noted here that, complainant booked the ticket by paying Rs.2,83,099/- towards the said tour and the credit shell was issued on 14.09.2020 whereas the pandemic situation arose during the month of March 2020 itself and the entire nation was under lockdown.  It is also to be noted here the complaint did not agree to use the credit shell certificate offered by the Ops and insisted for refund of the amount from the very inception.  In spite of it OP did not refund the amount whereas, it stick on to credit shell facility only which complainant did not agree for it.  The series of correspondences, e-mails have been admitted and even the exchange of legal notice is also admitted.   

18.   In view of the above discussions, retaining the entire amount without refunding and compelling the complainant to go in for a deferred tour which is to be organized by it amounts deficiency in service and also unfair trade practice. Since ops retained the entire amount and further offering a deferred tour package which the complainant refused to accept and not refunding the entire amount, made the complainant to suffer mentally, physically and financially which forced to file this complaint. In view of this, we are of the opinion that, a sum of Rs.10,000/- towards damages and Rs. 10,000/- towards litigation expenses if ops are ordered to pay to the complainant would be just and reasonable under the circumstances.

19.   Counsel for ops have relied on decision reported in decision by the Hon’ble National Consumer Disputes Redressal Commission in SATISHCHANDRA VASANTRAO GHATWAL V/S M/S KESARI TOURS PVT. LTD., wherein the commission has ordered 80% of the amount paid when the tour was cancelled just one day prior or one to two days prior to the departure of the flight. The facts of circumstances and situation leading to the decision of the said case are entirely different from the present case on hand. In the said case the tourist who booked ticket with the tour operator cancelled the tickets and the tour programme at the fag end just prior one or two days of the commence of the tour. Whereas in this case there was clear and sufficient time for cancelation of the tour and further cancellation was not at the will of the complainant. Whereas it was under the circumstance which was beyond the control of the either the complainant of OPs. Which is due to the pandemic situation of spreading of CORONA virus all over the world. Hence this decision of Hon’ble, National Commission Disputes Redressal Commission relied on by the ops will not help in any way to the ops.

20.   Since after receiving the amount, OPs have observed that, they have taken steps for smooth tour of the complainant by paying some advances to their vendors has not been substantiated by filing documents.  Even then they have to maintain the office and to do correspondences they have incurred some administrative expenses like paying to the accountant for keeping the account, for doing laison work, for contacting people at abroad and also the complainant at times and also making e-mail correspondences in informing and updating the developing they have incurred some amount as administrative expenses which we quantify at 15% to be deducted out of the total amount paid.  Hence, we answer POINT NO.1 IN THE AFFIRMATIVE and answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:-

                                  ORDER

1. The Complaint is partly allowed with cost.
2. OPs are directed to refund Rs.2,40,635/- to the complainant (Rs.2,83,099 - Rs.42,464/- being the 15% of the total amount as administrative usage) along with interest at the rate of 10% per annum on the said amount from 24.03.2020 till payment of the entire amount.
3. OPs are also further directed to pay a sum of Rs.20,000/- towards damages for causing mental agony and strain and further Rs.10,000/- towards litigation expenses.
4. OPs are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report on this Commission within 15 days thereafter.
5. 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 Commission on this day the 07^th day of SEPTEMBER 2022)

MEMBER                       PRESIDENT

ANNEXURES

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

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the mail conversation.

Ex P2: Copy of the credit shell certificate with terms and conditions.

Ex P3: Copy of the Paper cuttings

Ex P4: Copy of the mail conversation

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

RW-1: Sri Rahul Shekar, Authorized representative of OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Board Resolution

Ex R2: Terms and conditions for registration for the tour

Ex R3: Notification issued by Government of Maharashtra

Ex R4: Copy of Credit Shell Certificate

Ex R5: Copy of the Email.

Ex R6: Copy of the Travel notice.

Ex R7: Copy of order of National Commission

Ex R8: Certificate u/Sec.65 (B) of Indian Evidence Act

MEMBER                        PRESIDENT

RAK*