Date of Filing:28.01.2022

Date of Disposal:31.05.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SRI RAMACHANDRA.M.S,PRESIDENT

1. The complainant files a complaint with this Commission under Section 35 of the Consumer Protection Act of 2019 with a direction to OP to refund Rs.2,30,423/-  paid towards OPs services charges + Rs.47,500/- towards Air ticket, totally amounting to Rs.2,77,923/- along with interest at 18% p.a. and to pay a sum of Rs.2,00,000/- towards damages, mental agony, pecuniary loss  to the complainant and such other reliefs.

2.  The following are the complaint's key facts:

It is the case of he complainants the complainant and his family members go to tour to Simla,Manali and Vaishnodevi. The OP have been arranging tours and travels as they are in the business of tours and travels.As per brochure of the OP, as the complainant is interested to visit said placesand he booked tour package on 14.01.2020 to the above said places by paying initial deposit towards booking advance amount of Rs.52,500/- to travel for Shimla-Manali-Vaishnodevi for total five member of complainant family. It is also agreed between them that total servicecharges for the entire trip is fixed for a sum of Rs.2,83,000/-. The complainant has also paid balance sum of Rs.1,77,923/- by cash of Rs.47,500/- on 24.02.2020 to the OP towards the entire charges of balance air tickets.The OP have also issued receipts for being received the said amount. The complainant has paid total sum of Rs.2,83,000/- to the OP towards the said group trip package for himself and for 05 persons of his family members.

3. It is the case of the complainant that upon the receipt of full payment from the complainant the OP have scheduled the travel by air from Bengaluru to Delhi  on 16.03.2020 and to return from Delhi to Bengaluru on 29.03.2020 and they have also issued air tickets for booking Indigo Air lines on 16.01.2020.

4. It is further case of the complainant that during that period due to out burst of COVID-19, as Government of India has stopped all the tours and travels and also imposed lockdown. As such the complainant and his family members have afraid to travel during that period due to Covid-19 pandemic out burst. The complainant along with his family members  have visited   the OP on 16.02.2020 and they are orally requested the OP to  postpone the tour schedule and there after situation of pandemic became worse and on 21.03.2020 the nationwide  lockdown was imposed by the Government of India by an order of the Government of India, even all  the flights operation also got cancelled.  In that situation the complainant and his family members were not intend to proceed with the said tour as the situation was worse on that period.

5. It is the case of the complainant that on 30.03.2020 one of the complainant family member friend who is in tour schedule R.V.Muddanna who died on 30.03.2020 due to cardiac arrest  during the second wave of Covid-19. As such the complainant and his family members have decided not to proceed to tour of the destination which was booked by them and the complainant was also approached the OP to refund the entire amount, which has been paid by the complainant for booking tour package. Even after  sending legal notice, the OP has replied by stating that an advance amount will not be refunded at  any circumstances. Under such situationas the situation is worse at that point of  time and the complainant requested the OP to refund the said amount as they are not willing to travel. Inspite of emails, WhatsApp messages, letters and personal visits to the OP, nothing has worked out by OP expressing that it is not possible for them to return the said amount. Despite of all  efforts when the OP has failed to refund the said amount. Hence, the complainant was forced to file the present complaintseeking  for refund of amount  along with other reliefs as prayed in the complaint.

6. Notice to OPs duly served. OPsrepresented by counsel and filed written version. Inspite of sufficient opportunity, OP fails to lead any evidence in their side. Hence, the evidence of OP is taken as not filed.

7. The complainant filed chief-examination affidavit along with relevantdocuments in support of his contention.

8. Heard arguments. The matter is reserved for order.

9. The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

10. The findings on the above points are as under:

Point No.1                :       Affirmative

Point No.2                :       As per final order

REASONS

11. POINT NO.1:-On perusal of the complaint, chief-examination affidavit, it is found that the complainant along with his family members approached the OP with an intention to travel  Shimla, Manali and Vaishnodevi trip. The OP have been arranging tours and travels as they are in the business of tours and travels.  As per brochure of the OP, as the complainant is interested to visit said places  and he booked tour package on 14.01.2020 to the above said places by paying initial deposit towards booking advance amount of Rs.52,500/- to travel for Shimla-Manali-Vaishnodevi for total five member of complainant family. It is also agreed between them that total service  charges for the entire trip is fixed for a sum of Rs.2,83,000/-. The complainant has also paid balance sum of Rs.1,77,923/- by cash of Rs.47,500/- on 24.02.2020 to the OP towards the entire charges of balance air tickets.  The OP have also issued receipts for being received the said amount. The complainant has paid total sum of Rs.2,83,000/- to the OP towards the said group trip package for himself and for 05 persons of his family members.

12. It is the case of the complainant that upon the receipt of full payment from the complainant the OP have scheduled the travel by air from Bengaluru to Delhi  on 16.03.2020 and to return from Delhi to Bengaluru on 29.03.2020 and they have also issued air tickets for booking Indigo Air lines on 16.01.2020.

13. It is further case of the complainant that during that period due to out burst of COVID-19,as Government of India has stopped all the tours and travels and also imposed lockdown. As such the complainant and his family members have afraid to travel during that period due to Covid-19 pandemic out burst. The complainant along with his family members  have visited   the OP on 16.02.2020 and they are orally requested the OP to  postpone the tour schedule and there after situation of pandemic became worse and on 21.03.2020 the nationwide  lockdown was imposed by the Government of India by an order of the Government of India, even all the flights operation also got cancelled.  In that situation the complainant and his family members were not intend to proceed with the said tour as the situation was worse on that period.

14. It is the case of the complainant that on 30.03.2020 one of the complainant family member friend who is in tour schedule R.V.Muddanna who died on 30.03.2020 due to cardiac arrest  during the second wave of Covid-19. As such the complainant and his family members have decided not to proceed to tour of the destination which was booked by them and the complainant was also approached the OP to refund the entire amount, which has been paid by the complainant for booking tour package. Even after  sending legal notice, the OP has replied by stating that an advance amount will not be refunded at any circumstances. Under such situation, as the situation is worse at that point  of  time and the complainant requested the OP to refund the said amount as they are not willing to travel. Inspite of emails, WhatsApp messages, letters and personal visits to the OP, nothing has worked out by OP expressing that it is not possible for them to return the said amount. Despite of all efforts when the  OP has failed to refund the said amount. Hence, the complainant was forced to file the present complaint seeking for refund of amount  along with other reliefs as prayed in the complaint.

15. The OP filed written version. They have denied the complaint averments as well as allegations as against the OP. They have specifically contended that request for refund of the booking amount as per the terms and conditions of the tour agreement  entered between them, there is no provision for refund of the booking amount of the complainant. It is also specifically contended by the OP that the clause and terms and conditions are very clear that booking amount which was paid by the complainant cannot be refunded at any circumstances and considering the same, the OP has denied to refund the booking amount and they prayed for dismissal of complaint for the above reasons as the OP is not liable to refund the said amount.

16. It is observed from the complaint averments and also on perusal of the contentions of the OP that the transaction pertaining to tour and travel  fromSimla-Manali-Vaishnodevi is agreed as per tour package between the complainant and OP. It is also not in dispute by the OP that they have received total sum of Rs.2,83,000/- and the receipt of the said amount from the complainant. The tour package service is also admitted by the OP. The only dispute between the complainant  and OP is that whether the said amount which was paid by the complaint sum of Rs.2,83,000/- whether they have to refund or not. The OP contention is that as per terms of agreement which is entered between the complainant that there is no provision for refund of the booking amount  if the tour was cancelled. As such when there is no refund  clause in the agreement. The OP has denied to repay the said amount. The reason for cancellation of the tour package  from the complainant side is that due to outburst of Covid-19 pandemic. It is also alleged that there was nationwide lockdown and during that period the complainant and family members were afraid to travel during that period. It is also contended by the complainant that during that period one of the family member of the complainant R.V.Muddanna died due to cardiac arrest. By assigning all these reasons the complainant and his family members have decided to cancel the trip which was booked by them. As such after the cancellation intimation given to the OP for refund of the entire booking amount from the OP.  The commission relied on the judgment referred by Appellate authorities. The contention of the OP for denial to refund the said amount is not tenable under law. On this issue the Appellate authorities have held in several judgments in terms and conditions of agreement if it is arbitrary in nature and  also against the provisions of  natural justice and if it is againstinterest of aggrieved party.  Such contention,it has no legal sanctity under the provisions of law  and when such condition is imposed by the OP it  is to be termed as illegal and against the principles of natural justice. No law will recognize such act.

17. In view of the above discussion and by considering the contentions of the both parties and also by taking the facts of the annexures produced by the complainant, it is observed that the service which is  rendered by the OP there is deficiency of service on the their part. For  which they are liable to refund the entire amount paid by the complainant  along with other reliefs which is granted in the complaint. In view of the above discussion, the Point No.1 we answer Partly in Affirmative.

18. POINT NO.2:- In the result, we passed the following:

ORDER

1. Complaint is allowed in part.
2. The OP-1&2  are jointly and severally directed to refund Rs.2,83,000/-  by deducting GST if paid along with interest at the rate of 6% p.a. from 24.02.2020 till the  date of payment  made  to the complainant.
3. The OP-1& 2 are jointly and severally  directed to pay a sum of  Rs.10,000/- as compensation for deficiencyand a sum of Rs.5,000/- towards litigation charges. OPs fails to comply the order within 45 days from the date of order, compensation amount and cost of litigation shall  carry interest at 5% p.a. for non-compliance of the order from the date of order till payment is made.
4. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 31^st May 2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)       

 MEMBER                                  MEMBER

Witness examined on behalf of the complainant by way of affidavit:

Sri Shashidhara.Y.B-who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit:Sri M.Ramesh-GPA holder of OP

Documents produced by the OP:

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*