O R D E R
By Dr.K.Radhakrishnan Nair , Member :
Factual Matrix: The case of the complainant is that he had booked a tour package to Kashmir for his family with the opposite parties on 18/8/14. The total expenses for the tour package was Rs.1,31,000/-. The scheduled onward journey was on 8/9/14 and its return journey was on 12/9/14. Complainant had paid Rs.60,000/- as advance on 18/8/14 and the balance amount of Rs.71,000/-on 29/8/14. The departure time to Srinagar on 8/9/14 was 8.20 hrs. and the reporting time at airport was 7.20 hrs. Complainant and his family had reported well before the reporting time. Complainant alleges that their entire tour package was cancelled due to natural calamity and they came to know about the same only after reporting at the airport. Owing to the cancellation of the package they demanded the amount paid towards tour package. Even after repeated demands opposite parties have failed to refund the amount. Besides, complainant had also received a letter on 22/9/2014 from the opposite parties stating that opposite parties are not entitled to refund the amount since it is beyond their control and instead they offered a tour package to Lakshadweep. As further alleged the acts of opposite parties have resulted in great deal of financial loss, mental agony and great hardships to the complainant and his family. Opposite parties have in fact acted with intention of making additional profits from the complainant. The above acts tantamount to deficiency in service as well as unfair trade practice. Therefore, complaint may be allowed directing opposite parties to pay Rs.1,31,000/- with interest at the rate of 12% from 8/9/2014 till realization of the entire amount and Rs.50,000/- towards compensation for mental agony and sufferings and also Rs.10,000/- towards costs.
2.The case was admitted. Notice was ordered. Opposite parties appeared before the Forum through counsel and filed a detailed version. Opposite parties have traversed all the contentions of the complainant as follows: Besides categorical denial opposite parties state that the complaint is not maintainable. The opposite parties are not liable to be sued before this Forum. Complainant had already agreed to the terms that if any dispute will arise that would be under the jurisdiction of Ernakulam only. The complaint is bad for misjoinder as well as nonjoinder of necessary parties. Since the tour package was cancelled due to heavy flood at Kashmir the opposite parties are not at all liable for any acts that are beyond their control. The complainant has not understood the ingredients of the letter dated 22/9/2014 and filed this complaint. Even though the complainant is not legally entitled to get any amount as refund from the opposite parties it has been decided to issue a credit shell certificate to the complainant. This credit shell certificate will enable the complainant to undertake any tour package equal to the value of the amount paid by the complainant except to Lakshadweep within a period of two years from 1/10/14. As submitted early, the alleged inconvenience is caused to the complainant is due to the flood which is beyond the control of the opposite parties. This is nothing but Act of God. The averments in the complaint are incorrect and submitted with ulterior motives. The complainant will not come under the definition of consumers under the Consumer Protection Act. The opposite parties have fulfilled their contractual obligation as per the terms and conditions. If the complainant has any dispute in respect of the violation of the terms and conditions, the complainant can file a civil suit or approach arbitrator for any relief. The complaint is filed only on experimental basis. The amount claimed is exaggerative and also purely based on whims and fancies. The complainant is not entitled to any relief and the complaint is liable to be dismissed with cost to the opposite parties.
3.The case then posted for evidence. The points for consideration are the following:
1)Is there any deficiency in service on the part of opposite parties?
2)If yes, what are the reliefs and costs ?
4.Complainant and opposite parties have appeared before the Forum and filed proof affidavits. Complainant has submitted 6 documents that are marked as Exts.P1 to P6. Ext.P1 – Bank receipt (Rs.60,000/-), Ext.P2 – Bank receipt (Rs.71,000/-), Ext.P3 – credit shell certificate, Ext.P4 – Letter of Intimation of Journey and tour itinerary,Ext.P5 – News of flood Malayala Manorama (5/9/14) and Ext.P6 - News of flood Mathrubhumi (7/9/14) . Opposite parties have d 3 documents and marked as Exts.R1 to R3. Ext.R1 – Booking form with terms and conditions, Ext.R2 – Order in CC.508/2014 before CDRF, Calicut and Ext.R3 – Credit shell certificate.
5.Appreciation of evidence : We have examined proof affidavits, documents, argument notes and points raised during final hearing. There is no dispute with regard to the package or any customer service on the part of opposite parties. The only question to be considered is with regard to the cancellation of tour package and whether there is any deficiency in service? It is an indisputable fact that the tour was cancelled on reasons beyond the control of opposite parties. Exts.P5 and P6 submitted by complainant itself will prove the same. In the Ext.R1 its terms and conditions are provided which are fairly and squarely binding on the parties. As provided the itinerary can change without notice due to unavoidable circumstance beyond their control such as political unrest, natural calamities and changes in the itinerary by the government authorities etc. The complainant has no case with regard to any of the terms and conditions. Neither he has ever complained that he is unaware of any such terms and conditions nor any complaints of non-disclosure of any such terms and conditions by the opposite parties. Complainant has also not convinced this Forum that the opposite parties cannot raise such a defence of Act of God and they have unchallengeable responsibility to conduct tour even under such circumstance. Taking care of the risk voluntarily, we also find no relevancy to elaborate the case of law on such defence.
6.In the above circumstance, we are convinced that there is no deficiency in service or any unfair trade practice. We are also taking note of Exts.P3and R3 by which the opposite parties have taken care of the genuine interests of the complainant and his family by offering a credit shell account for the tour packages in future.
7.While appreciating the issue of a certificate of credit shell account the Forum sincerely feel that the terms and conditions of the credit shell account needs to be redefined as follows:
1.Even though you are not entitled……………
2.Yourself or the person………….within a period of three years from the date of this order and approp…….
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8.Reliefs and costs: We direct the opposite parties to issue a credit shell certificate on the revised terms as above within 30 days of receipt of a copy of this order and to ensure a comfortable tour package. Complaint dismissed without any cost.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 27th day of February 2021.
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Sreeja.S Dr.K.Radhakrishnan Nair C.T.Sabu
Member Member President
Appendix
Complainant’s Exhibits
Ext.P1 – Bank receipt (Rs.60,000/-), Ext.P2 – Bank receipt (Rs.71,000/-), Ext.P3 – credit shell certificate, Ext.P4 – Letter of Intimation of Journey and tour itinerary,Ext.P5 – News of flood Malayala Manorama (5/9/14) and Ext.P6 - News of flood Mathrubhumi (7/9/14)
Opposite Parties Exhibits
Ext.R1 – Booking form with terms and conditions, Ext.R2 – Order in CC.508/2014 before CDRF, Calicut and Ext.R3 – Credit shell certificate.
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Member
