ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1. This is the complainant filed by the Complainants 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.3,05,550/- which was received by the OP in respect of the tour to be conducted and for refund of the same along with interest at 12% per annum from the date of demand i.e.12/01/2020 till the date payment of entire amount, Rs.50,000/- as damages for undergoing mental agony and Rs.5,000/- towards  issuance of legal notice, and Rs.25,000/- towards litigation expenses and for such other reliefs as the Hon’ble District Commission deems fit.

2. The brief facts of the complaint are that: the complainants are the husband and wife. They wanted to go for a tour of Scandivavia Russian Countries. The tour was to commence from 14.05.2020 for a period of two weeks. It is a group tour promised and organized by OP. As per the terms and conditions of the payments, OP received Rs.2,88,750/-X2 = Rs.5,77,500 being the cost of the tour including GST for two persons. The entire advance amount paid under two separate cheques drawn on SBI, Kasturi Nagar, Bangalore which was encashed by OP and receipt bearing No. BGB 622543 dated 12.01.2020 was issued. OP also provided the itinerary and the list of passengers who are travelling in the said tour and also requested complainant to submit the pass port and other necessary documents for processing the VISA formalities which the complainant complied.  Afterwards, complainant did not hear any information from the OP even though the date of tour was approaching.

3. On 18.03.2020 OP sent an email informing that the company has rescheduled the international tour for the period from 15.03.2020 to 31.03.2020 and Europe tour till 15.04.2020 as per the travel advisory issued by Govt. of India on 11.03.2020. Immediately on 23.03.2020 complainants demanded OP to refund the full advance amount paid as they were not interested in the rescheduled tour and also due to the outbreak of pandemic COVID-19 and also requested to return the passport as the VISA processing was not completed . OP neither replied nor refund the amount and also the documents. Despite complainant sending emails to OPPOSITE PARTY, on 27.08.2020 OP issued a credit shell for rs.5,43,900/- under credit shell account NO.EV 005379after deducting Rs.16,800 X2,  for a sum of Rs. 2,71,950/- each. 

4. Complainant were really shocked to see such a credit shell issued to them without their consent, for which they immediately replied that they are not accepting the credit shield of the reschedule tour and demanded the refund of the amount paid by them as they were of old age and there is ascertaining of the future.  In spite of receiving the emails OP at Bangalore as well as Mumbai office gave evasive reply and did not refund the amount for which they had to issue a legal notice dated 06.04.2021 demanding the refund of the amount of Rs.5,77,500/- along with cost of issuance of legal notice of Rs.5,000/- to which neither replied nor complied with the demand made in the notice though received.

5. During 1^st week of May 2021, complainant No.1 fell ill and was hospitalized and was found positive for COVID 19 test. Complainant NO.2 requested OPs to refund the amount to meet the immediate hospital expenses of the complainant no.1 on 03.05.2021 over telephone.  OP readily agreed to refund half of the deposited amount on medical emergency and immediately credited Rs.2,71,950/- to the SB account of the complainant. They also assured that the balance amount would be sent within three months.  Without insisting on undertaking, complainants accepted the said amount and once again on 17.11.2021 OP sent an email to the complainants that they should accept and avail credit shell certificate. There was no whisper of refund of the amount.  Retaining the amount without providing service and not refunding the same amounts, to unfair trade practice and deficiency in service.  Hence prayed the commission to allow the complaint direct OPs to refund the balance of amount along with interest, damages and cost of the litigation.

6. Upon service of notice OP appeared through their counsel filed 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.

7. Complainants have 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 complainants have 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. 

8. 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 complainants.  Complainants themselves on their own choice approached OP for a tour to SCANDANAVIA RUSSIA Country. They themselves agreed to the terms and conditions and affixed their signature which terms are binding on both the parties.  They collected Rs.288750/- per person on 12.01.2020 under the BONANZA offer by OP.

9. The entire nation and also Maharastra Government announced lockdown on 23.03.220 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 27.08.2020 OP appraised the complainants 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. 

10. 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.  Upon the request of the complainant the full amount available in the credit shell of Narayana Kulkarni i.e. Complainant No.1 Rs.2,71,950/- was paid to him on 05.05.2021 due to his serious medical emergency without even waiting for the completion of the formalities of signing the undertaking as per the terms and conditions.  Complainants are well aware regarding the cancellation charges. Hence they did not cancel the tour.

11. 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.  Complainants have 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 complainants. OPs are not liable to pay Rs.50,000/- towards compensation as damages Rs.5,000/- towards cost and Rs.25,000/- 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. 

12. The actual cost per person was Rs.3,59,590 per person whereas they have given for reduced rate.  There is no misrepresentation on their part.  On 24.06.2020 they have couriered the passport to the complainant’s home address. 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 complainants to the said tour.  Denying all the allegations made against them prayed the Commission to dismiss the complaint by imposing compensation and costs.

13. 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 complainants have proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainants are entitled to the relief prayed for in the complaint?

14.   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:-

15. We have perused the documents produced and also the affidavit evidence adduced. It is not in dispute that the complainants booked the ticket with ops by paying Rs.2,88,750/- each (Rs.2,75,000/- + GST Rs.13,750).  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 complainants booked the ticket for Russian Countries for the tour to commence on 14/05/2020 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.

16. Ex-P-6 and R-4 produced by the complainant and OP which is a credit shell certificate wherein it is mentioned that it has received Rs.2,88,750/- per person, (complainant) towards the cost of the tour for two persons. It is mentioned in the said cost sheet that rescheduling charges as Rs.16,800/- each, zero amount towards VISA charges VFS, and zero charges in respect of other charges and has issued a credit shell by forwarding Rs.2,71,950/- to each of the complainants. 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. 

17.       It is not made clear whether out of the amounts received by the complainants, ops have made specific arrangements for the complainants for the complainants. 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 complainants 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.

18. 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 complainants to travel in a future date. OP cannot compel the complainants 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 complainants 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 complainants if deducted for the expenses incurred by OPs and refund the balance amount to the complainants would be just, proper and reasonable under the circumstances.

19. It is brought to our notice by the complainants and also in the version OP has informed this Forum that, a sum of Rs.2,71,950/- has been paid on 05.05.2021 due to the serious medical condition of the complainant No.1.   It is to be noted here that, complainant booked the ticket by paying Rs.2,88,750/- to each of the complainants towards the said tour and the credit shell was issued on 27.08.2020 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 complainants did not agree for it.  The series of correspondences, e-mails have been admitted and even the exchange of legal notice is also admitted.   

20. In view of the above discussions, retaining the entire amount without refunding and compelling the complainants 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 paying a Rs.2,71,750/- out of the amount received and further offering a deferred tour package which the complainants refused to accept and not refunding the entire amount, made the complainants 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 complainants would be just and reasonable under the circumstances.

21. 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 complainants. Whereas it was under the circumstance which was beyond the control of the either the complainants 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.

22. 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.4,90,875/- (Rs.5,77,500 minus Rs.86,625/- being the 15% of the total amount) with interest at the rate of 10% p.a on the said amount from 24.03.2020 till payment of Rs.2,71,750/- to the complainant No.1 i.e., on 05.05.2021 and out of the total amount deduct Rs.2,71,750/- and pay the balance amount along with interest at the rate of 10% p.a till payment of the entire amount.

3. OPs are also further directed to pay a sum of Rs.10,000/- 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 03^rd day of AUGUST 2022)

MEMBER                 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: True copy of receipt No.622543/BG dated 12.01.2020

Ex P2: True copy of receipt No.BGB-622542/BG dated    

           12.01.2020

Ex. P3:True copy of e-mail dated 18.03.2020

Ex P4:True copy of credit shell certificate dated 27.08.2020

Ex P5: True copy of e-mail dated 28.08.2021

Ex P6: True copy of legal notice dated 06.04.2021

Ex P7: True copy of postal receipt

Ex P8: True copy of postal track

Ex P9: True copy of SBI Bank Statement

Ex P10: True copy of e-mail dated 17.11.2021

Ex P11: True copy of e-mail dated 19.11.2021

Ex P12: Certificate u/Sec.65 (B) of Indian Evidence Act

Ex P13: Copy of Terms and Conditions

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: Certified copy of notice for traveler.

Ex R6: Copy of order of National Commission

Ex R7: Certificate u/Sec.65 (B) of Indian Evidence Act

MEMBER                 MEMBER                PRESIDENT

RHR*