ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not refunding the amount received in respect of booking a tour to Shiradi and cancelling the tour programme without the consent of the complainants and hence for refund of the said amount of Rs.46,200/- paid towards booking of the tickets along with interest at 18% on the said amount and Rs.1,00,000/- as compensation for causing mental agony, inconvenience, waste of time and cost of this proceedings and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The first complainant along with her husband and children wanted to go to Shirdi to have the darashan of Saibaba on 16.03.2019 for which they booked tickets by paying Rs.46,200/- with OP on 04.03.2019 to travel from Bangalore to Pune by flight and then through road.  She issued a cheque for the said amount which was encashed on 04.03.2019.  The date of departure from Bangalore was on 16.03.2019 and return date being 18.03.2019.  OP was to book hotel room in St.Laurn’s for their stay at Shirdi.  In the invoice given on 03.01.2019, the day on which she enquired regarding the package, it was informed that when once the tour was booked, there can be no change of their itinerary.  On 15.03.2019, when she went to the office of the OP to enquire regarding the status of the tour and to collect the air tickets she was shocked and surprised to be informed by OP that the tour programme of the complainants have been cancelled in respect of the complainants only.  

3.      OP itself cancelled the tour without their consent and without informing them. When questioned, OP gave evasive reply and also informed that if she wants to take any action against it, she can do so.  OP has conducted itself unprofessionally and hostile against the complainants.  It took unilateral decision in cancelling the tour package which was not at all requested by the complainants. The act of OP caused mental agony, financial loss.  They planned the tour after getting the holiday assurance by their employees as they were working in private firms.  Hence complainants gave a notice on 20.04.2019 to the OP calling upon it to refund the amount and also pay damages of Rs.1,00,000/-.  After receipt of the notice OP has given untenable reply and taken the contention that complainant themselves called the office of the OP on 12.03.2019 and made a request to postpone the trip due to exigency inspite of informing them that no refund will be provided. Inspite of it the complainants cancelled the tour and hence not liable to refund the amount.  They have not at all cancelled the trip and the question of postponing the tour and postponing the travel did not arise at all.  They are well aware of the tour policy of the airlines which do not refund the ticket when once booked.  Hence prayed the commission to allow the complaint.

4.      Upon the service of notice, OP did not appear before the Commission, hence placed exparte. On 22.08.2019 OP appeared before the Commission through its advocate S.M.Shamantha and filed application to set aside the exparte order under the wrong provision of the Act. Inspite of Commission directing to file the same under the right provision of the Act, same was not done and hence the Commission proceeded to post the case for complainant’s evidence by dismissing the application for setting aside the exparte order. OP preferred a Revision Petition before the Hon’ble State Commission in R.P.No.108/2018 which was came to be allowed by imposing cost of Rs.5,000/-.  Inspite of it, OP neither paid the cost nor made the application under the proper provisions of the act and did not file the version and did not adduce any evidence.

5.      In order to prove the case, complainants 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 Party?

2) Whether the complainants are entitled to the relief prayed for in the complaint?

6.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

7.     POINT No.1 AND 2:-

   Perused the complaint, version, affidavit evidence and the documents produced by the complainants.  From Ex.P1 it becomes clear that OP for and on behalf of four passengers i.e., for complainant 1 and 2, and for their children Yudha Madhu Iyengar and Vibha M Iyengar booked four tickets in flight to be travelled on 16.03.2019 which was to depart at 5.30 am., from Bangalore airport to Pune and on 18.03.2019 from Pune to Bangalore.  The hotel address is also given as St.Lourn’s at Shirdi.  It is also mentioned that the tour manager would be updated and the gross total amount of Rs.46,200/-.  Ex.P2 is the account extract of the complainants, wherein the cheque issued for Rs.46,200/- to OP has been encashed.  P3 is the copy of the legal notice which is served on OP as per acknowledgement P4 and P5 is the reply to the legal notice.

        8.     It is the specific case of the complainants that, abruptly and unilaterally OP cancelled the tour programme which was to commence from16.03.2019 without even informing and obtaining the consent.  In para 5, 6, 7 and 8 of the reply notice it is mentioned that the complainant themself called its office and requested to postpone the trip due to certain exigency and it took much endeavor to postpone the tour by talking to the concerned airlines, whereas the airlines refused to postpone the tour programme and the tickets and suggested to cancel the ticket and to purchase new and fresh tickets and the same was conveyed to the complainants over telephone and OP was instructed by the complainants to cancel the said tickets and once the refund is received to book new tickets according to the convenience.  It is specifically mentioned that on 12.03.2019 the complainants informed over phone to postpone the trip. No conversation details have been produced before this Commission by the OP to prove that the complainants sought for cancellation of the tour.  If at all such cancellation over phone was true, then OP could have asked the complainants to send an email to that effect, so that, it would be a record for it to cancel the tour programme.  Since the same has not been done, the contention of the complainants highly probablises that the tour was cancelled by OPPOSITE PARTY without obtaining the consent of the complainants.

        9.     Further in the reply to the notice, it is stated at para 2 that considering the request to cancel the booking the nominal amount of Rs.34,200/- would be refunded to the complainant as the said amount was the amount refunded by the airlines as per the policy.

        10.   When the reply to the notice is taken into consideration, if at all there was a request by the complainant to cancel or postpone the tour program which the airlines according to the OP refuse to do so, then why OP offered to refund the amount, has not been explained.  In view of this, as already stated, the contention of the complainants that the OP unilaterally and without the consent of the complainants cancelled the tour programme which made the complainants to undergo mental agony and hardship and not refunding the amount, amounts to deficiency in service and unfair trade practice. Though in the reply it is mentioned that it offered Rs.34,200/- being the amount entitle for refund from the airlines authority, OP has not at all placed any materials to show that either the same has been paid to the complainant or adjusted and credited to the account of the complainant. Hence we answer point No1 and 2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to refund Rs.46,200/- along with interest at 12% p.a., from 12.03.2019 till payment of the entire amount and also a sum of Rs.25,000/- towards damages for putting the complainants under mental agony and hardship and Rs.10,000/- towards litigation expenses.
3. The OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
4. 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 failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 25^TH DAY OF MAY 2022)

MEMBER                 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: Original tour booking invoice dated 01.03.2019

Ex P2: Statement of account of Complainant No.1

Ex. P3: Copy of the legal notice dated 20.04.2019

Ex P4: Postal receipts and served acknowledgement card

Ex P5: Copy of the reply notice dated 14.05.2019

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

• NIL -

Copies of Documents produced on behalf of Opposite Party/s

• NIL -

MEMBER                 MEMBER                       PRESIDENT

HAV*