Date of Filing: 26.04.2021 Date of Disposal: 29.03.2023
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
BENGALURU – 560 027.
DATED THIS THE 29th DAY OF MARCH, 2023
CONSUMER COMPLAINT NO. 294/2021
PRESENT:
SRI.RAJU K.S,
SMT.REKHA SAYANNAVAR,:MEMBER
Anupama Sukumaran,
Residing at: 27-2, 3rd Cross,
S.B.M Colony, Mathikere,
Rep by Dr. Rama R. Iyer, Advocate
1) Cox & Kings Limited,
No.22, BMH Complex,
K.H.Road, Bangalore-560027,
Represented by Authorized Signatory.
(Notice served – Remained Absent)
2) Suraksha Travels,
No.412, CMR Road,
HRBR Layout, 2nd Block,
Kalyan Nagar, Bangalore.
Karnataka, India-560043.
(Notice served – Remained Absent)
3) Vishal T.A,
No.412, CMR Road,
HRBR Layout, 2nd Block,
Kalyan Nagar, Bangalore,
Karnataka, India-560043.
(Notice served – Remained Absent)
//JUDGEMENT//
BY SRI. SHIVARAMA K, PRESIDENT
01. The complainant has filed this complaint under Section-35 of Consumer Protection Act, 2019 for a direction to the opposite party to refund the amount of Rs.1,20,000/- and compensation of Rs.3,00,000/- and such other relief as this Commission deems fit in the circumstances of the case.
02. Even though notice been issued through paper publication by way of substitute service, opposite party No.1 to 3 remained absent.
03. Initially, the complainant had filed a complaint in C.C. No.498/2020 on the file of this Commission and since the said complaint came to be dismissed for non-prosecution on 11.02.2021, complainant has filed this present complaint.
04. It is the case of the complainant that, opposite party No.1 is a travelling agency and opposite party No.2 is its franchise and opposite party No.3 is an employee at opposite party No.2. Further the complainant by seeing the advertisement had planned for holiday trip along with her family in the month of October-2019 to Singapore and the same was confirmed by opposite party No.2 after discussion with the opposite party No.3. Further as per the information given by the opposite party No.3, the complainant had paid advance booking amount of Rs.1,20,000/-, out of the total cost for the trip of Rs.3,00,000/-. Since the complainant doubted with the behaviour of opposite party No.2 & 3 she had worried and requested opposite party No.2 to refund the advance amount paid on 14.08.2019, but opposite party No.3 avoided the complainant’s calls and emails. Further the complainant has also got issued legal notice on 20.12.2019 to the opposite parties. Further even though opposite party have agreed to refund the advance amount on 25.01.2020, but did not repay it. Hence the complaint came to be filed.
05. To prove the case, the complainant (PW1) has filed affidavit in the form of evidence in chief and got marked EX.P.1 to P.3 documents.
06. Counsel for the complainant has filed written arguments. Heard the arguments.
07. The points that would arise for consideration are as under:-
(1) Whether there is deficiency of service on the part of the opposite parties?
(2) Whether the complainant is entitle for the
relief sought ?
(3) What order ?
08. Our findings on the aforesaid points are as follows:-
Point No.1 : In affirmative
Point No.2 : Partly in affirmative
Point No.3 : As per the final order for the following;
REASONS
09. POINT NO.1:- The complainant (PW1) has reiterated the fact stated in the complaint, in the affidavit filed in the form of her evidence in chief. Initially the complainant has filed a complaint in C.C. No.498/2020. The complainant has produced the certified copy of the order-sheet in the said case. On perusal of the same, it appears that, on 11.02.2021 the complaint came to be dismissed for default. According to PW.1 on the date of the order of dismissal in the said case, the complainant remained absent and her absent was not for any wilful default, but for bonafide reasons. Further on verification of the website for a few cases she found no up-date of the case and the next dates were not entered in the dairy of her advocate. Hence advocate did not note the next day of hearing and lost the track of the case. Since the strict civil procedure code is not applicable while trying the case before the Consumer Commission, we feel there is no bar to file second complaint in case the earlier case was dismissed for default.
10. Further it appears in Section 38(3)(c) of the Consumer Protection Act, 2019 that, in case the complainant fails to appear on the date of hearing Commission has to decide the complaint on merits. Hence the provision available under Consumer Protection Act, 1986 in Section 13(2)(c) to dismiss the case for default has been taken away in view of the Consumer Protection Act, 2019 came in to force. Hence there is no bar in filing the second complaint.
11. In support of the oral evidence the complainant has produced Xerox copy of bank counter form vide EX.P.1. On perusal of the same, it appears that, the complainant has sent a sum of Rs.1,20,000/- on 14.08.2019 through NEFT to the account of the opposite party. Further in EX.P.3 Xerox copy of whatsapp screen shots it appears that, on 16.01.2020 opposite party had sent a message that, the payment of the complainant would be released before 25.01.2020. The said message was sent by Vishal FOX & Kings. Further it is stated that, the sender of the message has got confirmation for the refund to be processed. Hence that itself is sufficient that, opposite party has agreed for refund of the amount after deducting the administrative charges. Further on perusal of EX.P.2 email communication, it appears that, the opposite party has confirmed the payment of Rs.1,20,000/- on 20.08.2019 and on 29.08.2018. The complainant had sent a mail stating that, due to some unprecedented engagements she was not able to confirm her travel plan as per the discussions and sought for repayment of the amount paid. Further as per the request of the opposite party the complainant has furnished the account details to remit the amount as per the email dated: 30.08.2019. Further the complainant had stated in the email dated: 30.08.2019 that, the amount should be transferred to the account mentioned after deducting the administrative charges. Hence non-implementing the assurance by the opposite party in refunding the amount, amounts to deficiency of service on the part of opposite party No.1 to 3. Hence we answer this point in affirmative.
12. POINT NO.2:- The complainant claimed a sum of Rs.1,20,000/-. On perusal of the record it reveals that, the complainant has paid Rs.1,20,000/- to the opposite party. It is not at all stated anywhere with regard to the administrative charges. Since the opposite parties are running travel agency they are entitled for administrative charges. We feel at random the opposite parties are entitle for a sum of Rs.10,000/- towards administrative charges. Hence the complainant is entitle for refund of Rs.1,10,000/-. Even though several correspondence been made and assurance been given by the opposite party, the opposite party did not return it. It appears that, on 29.08.2019 the complainant had sent email that, the complainant was not able to confirm the travel plan and sought refund. In the month of September the opposite party assured that, they would revert back the money, hence from the date of reply i.e., from the month of September-2019 the complainant is entitle for interest since the opposite party had failed to return the money of the complainant without any reason. We feel interest at the rate of 9% per annum would suffice in this case. Hence for the said amount of Rs.1,10,000/- the opposite party shall pay interest at the rate of 9% per annum from the month of September-2019 till realization.
13. Even though the complainant had made several correspondence the opposite party did not refund the amount. Hence the complainant sustained mental agony and untold hardship. Therefore the complainant is entitled for a sum of Rs.5,000/- towards mental agony. Further the complainant has filed the present complaint through an advocate and prior to that, the complaint filed was dismissed for default. Further the complainant took notice to opposite party Nos.1 to 3 by way of substitute service in “HOSADIGANTHA” Kannada daily newspaper and in “INDIAN EXPRESS” English daily newspaper. Hence the complainant is entitled for a sum of Rs.10,000/- towards litigation expenses. Hence we answer this point partly in affirmative.
14. POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-
ORDER
The complaint is allowed in part.
The opposite party No.1 to 3 are jointly and severally liable to pay a sum of Rs.1,10,000/- to the complainant with interest at the rate of 9% per annum from the month of September-2019 till realization.
Further the opposite party No.1 to 3 are directed to pay to the complainant a sum of Rs.5,000/- towards mental agony and a sum of Rs.10,000/- towards litigation expenses.
Further the opposite party No.1 to 3 shall comply the order within 30 days, in case they fail to comply the same within the above said period, the above amount of Rs.15,000/- carries interest at the rate of 9% per annum from the date of the order till realization.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 29th Day of March, 2023)
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
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//ANNEXURE//
Witness examined for the complainant side:
SMT. Anupama Sukumaran, the complainant (PW-1) has filed affidavit in the form of her evidence in chief.
Documents marked for the complainant side:
- Copy of the bank counter form – EX.P.1
- Computer downloaded email conversation – EX.P.2
- Copy of the WhatsApp screen shots – EX.P.3
Witness examined for the opposite parties side:
Documents marked for the Opposite Party side:
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
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