ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint 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.3,49,818/- which was received by the OP in respect of the tour to be conducted and for refund of the same along with interest at 18% per annum from the date of demand i.e. 12.03.2020 till the date payment of entire amount. Rs.50,000/- as damages for undergoing mental agony and Rs.2,000/- towards notice fee to the advocate and Rs.50,000/- towards advocates professional fee and Rs.75,000/- towards the unfair trade practice adopted by the OPs during COVID-19 situations and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; the complainants who are sisters wanted to go for European Tour in the month of May 2020. They contacted OPs who are the tour organizers and operators on 24.02.2020 and enquired with them regarding the tour.  OPs informed and gave the details and advised the complainants to make full payment within 72 hours of booking to avail many offers. Accordingly the complainants paid in all Rs.3,49,818/- on 27.02.2020 and 28.02.2020.  It was also informed by one Shwetha that they would require 45 days to complete the VISA formalities and original passport would be collected by the complainants.  The schedule tour was in the month of May 2020. Unfortunately COVID 19 pandemic brake down and the Government of India announced closure of the issuing of VISA and hence the complainants called on Shwetha and expressed the desire to cancel the tour as there was a threat of pandemic and Government of India advised its citizen to avoid international travels. On 12.03.2020 complainant sent a whatsapp message to OP and requested them to refund the amount and Miss Shwetha of OP informed that the company is in the process of cancelling all the tour and decision to refund the amount would be taken on 14.03.2020.

3.     The complainants were also informed that since their tour application was not yet processed, they would refund the entire amount and requested them to wait till 14.03.2020. On 14.03.2020 Miss.Shwetha informed the complainants that the decision for refund of the tour fee was taken by the company for the tours up to 31.03.2020 and to check the company web site.  Due to the Government of India declaring lockdown, OP did not respond subsequently and hence the complainants could not able to reach the office of the OP and even the mobile calls were unattended. Complainants sent many emails during April and May 2020 to the official email address of the OP. Inspite of it, OP failed to respond to the emails.  They contacted the sale executive one Roshini over mobile 9167835003 at Mumbai who informed them that they are working on the cancellation and of refund. 

4.     The Ops started mentioning forcemejeure situation and retained their entire amount even though Ops have not at all booked any flight tickets, reserved any hotels transporters overseas suppliers and they have also failed to get the VISA to the complainants.  When such being the case, OP ought to have returned their full amount as the tour was to be cancelled due to the pandemic situation. As a prudent business organization OP ought to have refunded the entire amount since there was worldwide uncertainty. Whereas OPs treated the case of the complainants as just like any other travellers who cancels the tour programme and did not refund the amount.

5.     Even Ops have not at all processed the application.  There was clear 70 days from the date of booking from the date of departure regarding the cancellation of the tour. The VISA offices were also closed worldwide. OPs are very well aware of the uncertain situation worldwide. Collecting the amount and not processing for the tour and not refunding the amount collected by them towards the tour charges is illegal, amounts to unfair trade practice and also deficiency in service. Though complainants request for refund the amount through registered Email and also by issuing legal notice, OPs refunded only Rs.25,000/- (12500 to each of the complainants) and issued credit shell certificate for Rs.3,24,818/-the validity of which up to 31.01.2022.

6.     Though the complainants were not ready to travel anywhere due to COVID 19 situation OPs are compelling the complainants to travel at a later date and withholding their money. They have been asking for refund of the entire amount and inspite of it Ops have not refunded the same and hence the complaint.

7.     Upon the service of notice, Ops appeared before the forum and filed their version, contending that, the complaint filed is without any reason and base and there is no cause of action for the complainants to file the same. Complainants themselves approached OPs and informed regarding their tour. After going through the brochure and understanding and accepting the terms and conditions of the booking, booked for a European Tour.  Op has denied that they issued credit note as complainant did not provide the annexures attached to the complainant. Complainants booked group tour by availing huge discount.  The cost of tour per person was Rs.2,44,390/- whereas the same was offered to complainants at Rs.1,65,000/- plus 5% GST by providing a discount of Rs.79,390/-. 

8.     Many number of countries put a total ban of visiting foreign nationals due to COVID-19 situation. The ministry of home affairs Government of India issued an order of lockdown of the country effective from 24^th March 2020.  All commercial, private office, transport services Air, Rail, Road ways, hospitality services, closed and suspended.  It also restricted the movement of the people.  After June 2020 with limited work force as per the government norms, they started to work with less staff.  They did not have work home system and all the bookings were with face to face conversation.  The high destructive COVID-19 situation, impacted the entire world, and all industries, the tour and travel industries, came to a stand still. Day by day the number of countries in the world banned the tourist. 

9.     The said order continued till 31.10.2020.  Any group tour package, the travel company need to book all arrangement a near more than a year in advance. Once a travel company receives payment from the customers, the said money is utilized for prepurchase of tickets with airline, booking of hotel rooms destination management service. VISA processing fee, VISA charges, local agents fee, Rail services, Cruise reservations, transporters and administrative expenses which are not refundable. Considering unforeseen COVID-19 scenario the airlines and service providers in India and abroad finally agreed to reschedule the present booking date to a future date. 

10.   They have sent email on 07 & 08.09.2020 informing the status of the tour and rescheduling the same. Since the complainants did not provide the annexures to the complaint made by the complainants, OPs gave option to the complainants that in case they cannot travel, they can transfer the said ticket to other persons by changing the name. Complainants did not reply the same.  There is no deficiency on their part and they have not caused mental agony to the complainants and prayed the commission to dismiss the complaint.

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 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?

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 complainants booked the ticket with OPs by paying Rs.3,49,818/-. 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 to be noted here that, the complainants booked the ticket for European tour on 12.03.2020 whereas the Government of India brought lockdown on 24.03.2020, on the entire activities whether it is business, travel or hospitality and were closed in its entity  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 and 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.R7 is produced by OPs wherein it mentions that it has received Rs.3,49,818/- towards the cost of the tour for two persons. It is mentioned in the said cost sheet that it has spent Rs.33,334/- towards the administrative expenses zero amounts to VISA fee Rs.1,62,656/- towards overseas suppliers, zero Rs. To Euro rails, Zero Rupees towards air ticket, Rs.2,952.- towards euro meals total Rs.1,98,942/- and GST of 35,810/- and total actual cancellation Rs.2,34,752/- and the remaining amount to be paid as per the actual cost is Rs.1,15,066/-.  It also contains the work sheet for the financial years 2020 and also its entire expenses for the year throughout.  It has produced various documents to show that they have booked advance payment for making arrangements. 

15.   It is not made clear whether out of the amounts received by the complainants, OPs have made specific arrangements for the complainants. It 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.35,810/- 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 cuts, 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 complainants.

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 complainants to travel in a future date. Ops 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 Rs.1,62,656/- towards overseas suppliers so also Rs.2,952 /- towards euro meals. 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 some office and administrative expenses, we are of the opinion that, if a sum of 15% amount out the entire amount by the complainants if deducted for expenses incurred by OPs and refund the balance amount to the complainants would be just, proper and reasonable under the circumstances. It is brought to our notice by the complainants that OP has refunded Rs.25,000/- in all towards refund of the amount.

17.   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 partly amount of Rs.25,000/- out of the amount received and further offering a deferred tour package which the complainant refused to accept and not refunding the entire amount, made the complainants to suffer mentally, physically and financially forced to file this complaint by engaging a professional by paying him his fee. 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 reasonable under the circumstances.

18.   Counsel for OPs has relied on decision reported in decision by the Hon’ble National Consumer Disputes Redressal Commission in SATISHCHANDRA VASANTRAO VS M/S KESARI TOURS PVT. LTD wherein the commission has ordered to deduct 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 and 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 cancellation of the tour and further the 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 or OPs, which is due to the pandemic situation of spreading of CORONA VIRUS all over the world. Hence, this decision of Hon’ble National Consumer Disputes Redressal Commission relied on by the OPs will not help in any way to the OPs.  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 the amount received by it from the complainants i.e Rs.3,49,818/- less 15% out of it, (which includes Rs.25,000/- paid to the complainants by OP)  along with interest at 10% per annum from 14.03.2020 the date of receipt of the amount from the complainant till payment of the entire amount.

3. Ops are also 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 to 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 October 2021)

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: The tour details and the cost details for the Europe tour.

Ex P2 to P5: Credit  note for having paid Rs.1,73,859/- and Rs.1050/- and Rs.1,73,859/-

Ex. P6: Tour registration form.

Ex P7: Rules and regulations.

Ex P8: Whatsapp message.

Ex P9: guidelines issued by the travel company

Ex P10: Email correspondences.

Ex P11: Copy of the legal notice.

Ex P12: copy of the postal acknowledgments.

Ex P13. Copy  of the credit shell certificate.

Ex P14: Certificate u/S 65B of the Indian Evidence Act.

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

RW-1: Sri Rahul Shekar, Sales Executive 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: Government advisory

Ex R4: Travel note.

Ex R5: Certified copy of the Credit intimation letter.

Ex R6: Credit shell Certificate

Ex R7: Expenses sheet

Ex R8: Ticket details and cost particulars

Ex R9: Jet airways claim

Ex R10: Claim before authorities against kingfisher.

Ex R11: Notice to creditors.

MEMBER                        PRESIDENT

RAK*