DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM

Dated this the 23^rd day of April, 2024.

                                                                   Filed on: 15/06/2023

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member Smt.Sreevidhia.T.N                                                              Member

C.C. No. 387/2023

COMPLAINANTS

1. Meto Paulose Puthanangadi, S/o. Puthanangadi House, Nazareth Road, Aluva 683101, Ernakulam District
2. Jessy George Manjuran, W/o. Meto Paulose Puthanangadi,  Puthanangadi House, Nazareth Road, Aluva 683101, Ernakulam District
3.  Phijo Joseph, S/o. Mampilly House, Near Karuna Special School, Nayarambalam P.O. 682509, Ernakulam District

Vs

OPPOSITE PARTIES

Chief Executive Officer, Delmos World Pvt. Ltd., 209, Prakashdeep Building, 2^nd Floor, 7, Tolstoy Road, Barakhamba, New Delhi 110001.

F I N A L   O R D E R

D.B. Binu, President.

1. A brief statement of facts of this complaint is as stated below:

The complaint lodged under Section 35(1) of the Consumer Protection Act, 2019, by members of the Kerala Polymer Manufacturers Association (KPMA) against a travel and tourism company. The main issues include:

The complainants engaged the opposite party to arrange a package tour to Dusseldorf, Germany, for a trade fair. Each member paid INR 1,50,000 as advance payment before the stipulated due date. The travel company failed to obtain German visas in time for the departure, which were only approved after the scheduled travel dates. This failure was attributed to the company's lack of follow-up.

The complainants had rearranged their personal and professional commitments to accommodate the trip and incurred costs for alternative arrangements due to their inability to travel. Despite the services not being rendered as agreed, the travel company refused to refund the advance payments, erroneously claiming that the cancellation was initiated by the complainants at the last moment.

It is noted that the travel company likely received refunds for the airplane tickets booked in the complainants’ names but still withheld the refunds owed to the complainants. The complainants, through their legal representation, sent a notice to the travel company, which remained unanswered, prompting the formal filing of this complaint.

The complainants are seeking compensation for their financial losses, punitive damages for deficiency in service and mental agony, as well as coverage for legal costs and any additional reliefs deemed appropriate by the Commission. The specific requests include a refund of INR 1,50,000 to each complainant with 12% interest from a certain date and punitive costs totaling INR 3,00,000. The jurisdiction for this complaint is cited as Ernakulam, where the initial transactions and intended travel departure occurred.

2). Notice

The Commission sent a notice to the opposite party, who acknowledged receipt but did not file their version. Consequently, they have been set ex parte.

   3). Evidence

            The complainants submitted an ex-parte proof affidavit along with 8 documents, marked as Exhibits A1 to A8.

• Exhibit A1: Tour Package Offer by Delmo World Pvt Ltd dated 2.6.22.
• Exhibit A2: Proof of payment of Rs 3,00,000/- made to the Opposite Party by First Complainant and Second Complainants dated 25/6/22 and 27/8/22.
• Exhibit A3: Proof of payment of Rs 1,50,000 made to the Opposite Party by Third Complainant dated 27/6/22 and 25/8/22.
• Exhibit A4: Call letter received from Visa Centre.
• Exhibit A5: Print out of email sent by Mr. P.J. Mathew to Opposite Party dated 22.11.22.
• Exhibit A6: Print out of email from Opposite Party refusing to refund the money paid by Complainants dated 21.11.22.
• Exhibit A7: Copy of lawyer notice sent to the Opposite Party with Postal receipt dated 8.2.23.
• Exhibit A8: Print out of EMAIL Notice sent to Opposite Party by Advocate for Complainants dated 27.1.23.

4). The main points to be analysed in this case are as follows:

i)       Whether the complaint is maintainable or not?

ii)      Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?

iii)     If so, whether the complainant is entitled to get any relief from the side of the opposite party?

iv)     Costs of the proceedings if any?

5).     The issues mentioned above are considered together and are        answered as follows:

In the present case in hand, as per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment.  True copies of the proof of payments totaling Rs 3,00,000 made by the First and Second Complainants on 25/6/22 and 27/8/22, and Rs 1,50,000 made by the Third Complainant on 27/6/22 and 25/8/22, respectively, to the Opposite Party. (Exhibits A-2 and A3). Hence, the complainants are consumers as defined under the Consumer Protection Act, 2019, (Point No. i) goes against the opposite party.

The complainant brought this case forward to address the service deficiencies and alleged unfair trade practices by the opposite party, a travel and tourism company. These issues arose from the company's failure to organize a promised tour to Dusseldorf, Germany, for the K-2022 Trade Fair. The complainants contend that these failures not only highlight lack of proper service but also constitute unfair trade practices.

We have heard the complainants. Complainants filed a detailed argument note emphasizing the failure and negligence of the opposite party, a travel and tourism company, in arranging a promised tour to Dusseldorf, Germany for the K-2022 Trade Fair.

The main points include:

The opposite party committed to organizing the tour and accepted advance payments totaling INR 1,50,000 from each complainant as evidenced by documents (Exhibits A1, A2, and A3).

The travel company failed to secure the necessary German VISAs in time for the departure, leading to the complainants missing the event. The VISAs were only approved after the planned travel date, attributed to the company's lack of follow-up.

Despite requests for a refund, evidenced by correspondence (Exhibit A5), the company wrongly insisted that the cancellation was at the last minute by the complainants, refusing refunds as shown in Exhibit A6.

The company did not incur any expenses on behalf of the complainants since they claim to have received refunds for the airline tickets and did not make other bookings.

Legal notices were sent to the opposite party (Exhibit A7), which went unanswered, and the company also failed to appear before the commission despite being summoned.

Due to these circumstances, the complainants request the commission to:

Compensate each complainant INR 1,50,000 with an additional 12% interest from the scheduled date of travel.

Impose punitive costs of INR 3,00,000 for the service deficiencies and mental agony caused.

Cover the legal proceedings cost of INR 1,00,000.
This plea underscores the perceived negligence and poor service provided by the travel company, emphasizing the financial and emotional toll on the complainants, along with their ongoing legal struggle.
The opposite parties’ conscious failure to file their written version in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations leveled against them.  Here, the case of the complainants stand unchallenged by the opposite party.  We have no reason to disbelieve the words of the complainants as against the opposite party. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).

We have carefully heard the submission made at length by the learned Counsel representing the complainants and have also considered the entire evidence on record.

EVIDENCE AND SUBMISSIONS:

Exhibits A1 to A8 were duly submitted, evidencing the agreement for the tour, payments made, failure in visa processing, communications regarding refunds, and legal notices sent but unanswered by the Opposite Party. Despite the notice from this Commission, the Opposite Party did not file a version and consequently has been set ex parte.

A. Deficiency in Service and Negligence:

The Opposite Party failed to secure necessary visas on time, a fundamental requirement for the trip, thereby preventing the Complainants from attending the Trade Fair. This constitutes a deficiency in service and negligence under Section 2(II) and 2(47) of the Consumer Protection Act, 2019. The company's failure to follow up on visa arrangements, as admitted through the lack of response to the Complainants and this Commission, underscores the deficiency.

B. Unfair Trade Practices:

The refusal to refund the advanced payments based on the erroneous assertion that the Complainants cancelled their trip at the last moment constitutes an unfair trade practice under Section 2(47) of the Act. The Opposite Party's actions of withholding funds, despite having received refunds for airline tickets, further add to this conclusion.

C. Liability of the Opposite Party:

The Opposite Party’s liability is clear under the principles of service contract and consumer protection. The service was neither rendered as promised nor within the stipulated time, essential for the Complainants' purpose of the trip. The absence of a response from the Opposite Party and their failure to appear before this Commission indicates acceptance of the allegations.

The case aligns with precedents such as in [2017 (4) CPR 590 (NC)], where the National Commission held that non-appearance and failure to contest the claims can be construed as acceptance of the allegations made by the Complainant. Furthermore, the requirement for service providers to ensure due diligence in fulfilling their obligations has been emphasized in several rulings.

This judgment is expected to serve as a deterrent to similar cases of negligence and deficiency in service within the travel and tourism industry, thereby reinforcing the rights of consumers under the Consumer Protection Act, 2019.

We determine that issue numbers (I) to (IV) are resolved in the complainant's favour due to the significant service deficiency and the unfair trade practices on the part of the opposite party. Consequently, the complainantshas endured considerable inconvenience, mental distress, hardships, and financial losses as a result of the negligence of the opposite party.

In view of the above facts and circumstances of the case, we are of the opinion that the opposite party is liable to compensate the complainants.

Hence the prayer is partly allowed as follows:

1. The opposite party is directed to refund the amount of ₹1,50,000 (Rupees One Lakh Fifty Thousand Only) to each Complainant (total ₹4,50,000 [Rupees Four Lakh Fifty Thousand Only]), as substantiated by Exhibits A-2 and A-3.
2. The opposite party is directed to compensate the complainants with a total amount of ₹1,50,000 (Rupees One Lakh Fifty Thousand Only), divided equally among the Complainants for service deficiency, unfair trade practices, and the consequent mental distress, hardship, loss, and inconvenience suffered.
3. The opposite party shall pay the complainants ₹15,000 (Rupees Fifteen Thousand Only) to cover the costs incurred during these proceedings.

The Opposite Party is liable for the fulfillment of the above orders, which must be executed within 45 days from the date of receiving this order. Should there be a failure to comply within the stipulated period, the amounts detailed in Points I and II will accrue interest at an annual rate of 9%, starting from the expiration of the 45 days, from the date of filing of the case (15.06.2023) until the date of realization.

Pronounced in the Open Commission on this the 23^rd day of April, 2024Sd-

Sreevidhia.T.N, Member

D.B.Binu, President

Forwarded/by Order

Assistant Registrar

                                                     Forwarded/by Order

Complainant’s Evidence

Exhibit A1: Tour Package Offer by Delmo World Pvt Ltd dated 2.6.22.

Exhibit A2: Proof of payment of Rs 3,00,000/- made to the Opposite Party by First Complainant and Second Complainants dated 25/6/22 and 27/8/22.

Exhibit A3: Proof of payment of Rs 1,50,000 made to the Opposite Party by Third Complainant dated 27/6/22 and 25/8/22.

Exhibit A4: Call letter received from Visa Centre.

Exhibit A5: Print out of email sent by Mr. P.J. Mathew to Opposite Party dated 22.11.22.

Exhibit A6: Print out of email from Opposite Party refusing to refund the money paid by Complainants dated 21.11.22.

Exhibit A7: Copy of lawyer notice sent to the Opposite Party with Postal receipt dated 8.2.23.

Exhibit A8: Print out of EMAIL Notice sent to Opposite Party by Advocate for Complainants dated 27.1.23.

Opposite party’s Exhibits

Nil

Despatch date:

By hand:     By post                                                  

kp/

CC No. 387/2023

Order Date: 23/04/2024