Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, NORTH GOA AT PORVORIM. QUORUM. BELA N NAIK, PRESIDENT AUROLIANO DE OLIVEIRA, MEMBER REJITHA RAJAN, MEMBER Consumer Complaint No.:- 92of 2021 - Mr. John Constance D’Souza
Aged 35 yrs, Business R/o H. No.2/207 Naikavaddo Calangute Bardez Goa 403516 - Mrs.Maria Arcanjela D’Souza
Aged 66 yrs R/o H.No. 2/207 Naikavaddo Calangute Bardez Goa 403516 - Mrs.Maria Philomena D’Souza
Aged 64 yrs, House wife R/o H.No. 2/168D Naikavaddo ,Calangute Bardez Goa 403516 - Mrs.Anna Francisca Rita D’Souza
Aged 31 yrs, House wife R/o H.No. 2/207 Naikavaddo ,Calangute Bardez Goa 403516 - Jenesius Francis D’Souza
Aged 34 yrs, Business R/o H.No. 2/207 Naikavaddo ,Calangute Bardez Goa 403516 - Master Johann D’Souza
Minor Through his mother and natural guardian Mrs. Valancia D’Souza R/o H.No. 2/207 Naikavaddo ,Calangute Bardez Goa 403516 - Mrs. Valancia D’Souza
R/o H. No. 2/207 Naikavaddo ,Calangute Bardez Goa 403516 …………….Complainants V/s - Mr. Robin A Rodriques
Proprietor’FlamingoHolidayWorldwide’ 5 ORINHA Umta Vaddo, Calangute Bardez Goa ……………Opposite Party Date of Complaint: 25/11/2021 Date of Judgment: 17/02/2023 Adv. Ms. S. Nazarepresent for the Complainant Opposite Parties Ex-parte -
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By this Judgment and Order, we shall finally dispose off the Consumer Complaint Under Section 35 ( 1) of C. P. Act 2019. - The Case of the Complainants in brief is that the Complainants states that they were desirous of proceeding on a pilgrim tour to visit holy places all over Europe and had saved their hard- earned money for last several years, to make their dream come true and as such they started making inquires on the social media as well as on the print media and came across an advertisement of Western Europe tours claimed to be conducted by the opposite party, namely Flamingo Business Holiday World Wide situated at 5 Orinha, Umta Vaddo, Calangute Bardez Goa,of which the proprietor was Mr Robin Rodriques is a sole proprietor.
- The complainants were impressed by the said advertisement and as such approached in the office of the opposite party at the address as mentioned above to discuss about the tours offered by the opposite party under the said advertisement.
- The complainants met the sole proprietor of the opposite party and the opposite party gave them all the details of the tour on his laptop and thereafter informed the complainant that the cost of the tour would be Rs 2,28, 000/- (Two Lakh Twenty Eight Thousand only)
per head which amount was reflected in the advertisement as well. - The Opposite party deceived the complainants and urged them to pay the said amount to enable him to book their tickets at the earliest as the said offer of the tour for an amount of Rs.2,28,000/-( Two Lakh Twenty Eight Thousand Only) for per head was valid only for a period up to January 2020.The opposite party also informed the complainant Nos. 2 &3 that they would be charged an additional amount of Rs. 4000/- ( Four Thousand Only) each towards insurance as the complainant nos.2 &3 were senior Citizen.
- The complainants on being deceived by the inducement by the opposite party, paid to the Opposite party the following amounts:-
- A sum of Rs. 1,00,000/-( One Lakhs Only) vide Cheque bearing no. 520114 of Canara Bank, Candolim Branch,Goa being paid by The complainant No.2
- A Sum of Rs. 1,00,000/- ( One Lakh Only) vide Cheque Bearing No. 000001 drawn on Bank Of Baroda, Calangute Branch, Goa paid by the complainant No.3
- A sum of Rs. 50000/- ( Fifty Thousand only) vide Cheque Bearing No 018660 drawn on Goa State Co-op Bank, Calangute Goa, paid by the Complainant No.5
- Thereafter the complainant no. 1 along with his mother , his wife and son (Complainants Nos 2, 6 &7 respectively) visited the office of the opposite party on 7/2/2020 and requested the opposite party to provide the entire itinerary of the tour in details, which was thereafter sent to complainant no.1 via WhatsApp on cell phone bearing No. 9822389898.
- The complainants upon perusing the itinerary/ program were excited and looked forward to a dream pilgrim tour and had it not been for the inducement as portrayed by the advertisement as well as the itinerary/ program shared with the complainants via Whatsapp , the complainants would have never parted with their hard-earned money.
- After having received the itinerary/program, the opposite party demanded the payment a further sum of money which came to be paid in the following manner.
- A Sum of Rs. 2,00,000/- ( Two Lakh Only) vide cheque bearing no .005359 drawn on Goa State Co-op Bank ,Calangute Branch, favouring the opposite party,paid by the complainants Nos. 1 & 4.
- Thereafter on 17/2/2020, on instructions from the opposite party, the complainants went to Suade Chapel Mazalvaddo, Anjuna Bardez Goa along with their passports, copies of their FDs, It returns and photocopies of their Master cards/ Visa cards and photographs for process their visas, through the agent of the Opposite party. On verification of the same, the complainants were then asked to return to the office of the opposite party at 5 Orinha, Umta Vaddo, Calangute Bardez – Goa ,on 23/02/2020.
- As per the instructions given, the complainants attended the office of the Opposite party on 23/02/2020 at which time the opposite party retained the original passports and photographs of the complainants and further instructed the complainants to pay the balance amount and accordingly the complainants No.1 paid a sum of Rs. 4,39,000/-
(Four Lakh Thirty Nine Thousand Only) vide cheque no. 530320 drawnon State Bank Of India Calangute Branch Goa as and way of full paymentsfor himself, his wife as well as his son and the complainants no. 2 ,paid a further amount of Rs. 1,26,000/-( One Lakh Twenty Six thousand only ) vide cheque bearing no. 118341 drawn on Goa State Urban Bank Porvorim Branch and Rs 4000/- (Four Thousand Only) in case for travel insurance for complainants no.2 ,being a senior citizen herself. - Complainant no.3 paid a sum of Rs. 1,26,000/- ( One Lakh Twenty Six Thousand Only) in cash as well as Rs. 4000/-(Four Thousand Only)in cash towards travel insurance to the opposite party.
- Complainant no.5 paid an amount of Rs. 2,00,000/- ( Two Lakh Only) to the Opposite party ,vide cheque bearing no. 018661 drawn on Goa State Co-op Bank Calangute Branch,Goa.
- On receipt of the entire payments, the opposite party informed the complainants that they would be intimated about the visa appointment date and would be furnished with tickets as well as hotel booking documents in respect of the tour.
- On 05/03/2020 the complainants were informed by the opposite party that the visa appointments at VFS Panaji, Gera Grande, Nr.Ginger Hotel was scheduled on 11/3/2020 and the complainants were further instructed by the Opposite party to be present along with all their documents, however all original documents including passports of the complainants were in the possession of the Opposite party.
- The opposite party forwarded two PNR numbers to the complainants no.1 one being 63378144 and the other being 64004882.
- On verifying the above PNR numbers as furnished by the opposite party,said PNR numbers appeared to be invalid combinations and when the opposite party was informed of the same, he assured the complainants that print outs of the tickets would be furnished to them on 1/7/2020 at the time of departure.
- That due to Covid -19, The Govt. of India enforced a lockdown on the 22nd of March 2020 and there was uncertainty regarding international flight as per S.O.P. on inquiring about the same , the opposite party informed the complainants that the tour was postponed till July 2020.
- On receiving no communication from the opposite party thereafter, the aggrieved complainants were left with no other alternative but to request for the refund of the amount of RS. 13,49,000/-( Thirteen Lakh Forty Nine Thousand only) which was paid to the Opposite party as and by way of the total cost for the tour as it was clearly evident that the opposite party deliberately and wilfully avoiding any further communication with the complainants and by then the International travel was not permitted resulting in there being no possibility of the tour taking effect.
- The complainants state and submit that although the opposite party collected a sum of Rs. 13,49,000/-(Thirteen Lakh Forty Nine Thousand only) from the complainants ,the opposite party neither furnished to the complainants the flight tickets for the entire tour, their visas, passports hotel accommodation voucher and entry tickets to the pilgrim places which were part of the itinerary thereby making it clearly evident that the opposite party never had the intention of organizing the tour and had not made any booking of either Flights, Hotels, Tours,Airport transfer etc.
- The actions of deceit and dishonesty on the part of the opposite party, to induce the complainants to pay the amount for the tour by taking advantage of their desire to go a pilgrim tour holy places which the opposite party never intended to conduct, tantamounts to fraud on behalf on the opposite party.
- The complainants states and submit that from the conduct of the opposite party, it is clearly evident that the opposite party has not only misled the complainants and belied their trust but also grossly neglected and failed to discharge the duty and for which the complainants spent their hard earned money. The opposite party having grossly failed to discharge his obligation and render service, for which the opposite party have received valuable consideration, is guilty of deficiency in service as defined under the consumer protection act 2019 and the rules made there under having failed to discharge his obligation arising out of the said agreements.
- The complainants thereafter approached the opposite party on several occasions for refund of the money and the return of the passports as the passports were personal documents of the complainants, however the opposite party neither refunded the amount not returned the passports and the complainants left with no other alternative lodged a complaint before the Police Inspector, Calangute police station on 18/04/2020.
- The complainants submits that for the reasons best known to the Police, Calangute Police initially failed to register an F.I R, however, the complainants thereafter approached the Director Public Grievances and lodged a complaint dated 14/10/2020 and with the indulgence of the Director general of public grievances, an F.I.R bearing no. 266/20 came to be registered against the opposite party.
- The complainants thereafter were summoned to the police station for the purpose of recording statements and conducting investigation, however, no attempt was made to recover the passports and handover the same to the complainants.
- The complainants thereafter being left with no other alternative lodged a complaint before the passport officer and the complainants apprehended that the passports may be misused by the opposite party and the passport officer accordingly took note of the same and informed the Calangute police. The Complainants thereafter once again visited the Calangute police station for release of the passports however the Calangute police informed the complainants that the passports can be released only from the order of the court and accordingly the complainants being left with no alternative had to approach an Advocate for initiating proceedings for release of the passports.
- The complainants states and submits that the Complainants were forced to file seen applications for release of the passports under Section. 457(2) Cr. P.C before the Court of the Judicial Magistrate First Class at Mapusa, Goa and Hon’ble Court of the Judicial Magistrate First Class at Mapusa, Goa was pleased to issue notice to the Calangute police of the said applications and the Calangute police was pleased to file reply wherein the police confirmed that the House of the opposite party was searched after obtaining the search warrant and 61 original passports belonging to different travellers including those of the complainants were attached.
- The court of the Judicial Magistrate First Class at Mapusa, Goa after hearing the parties was thereafter pleased to order the release of the passports by order dated 28/6/2021, but not before directing the complainants to execute an indemnity bond of Rs. 10,000/-(Ten Thousand Only) each.
- The acts of the opposite party in deceiving the complainants and inducing them to part with a sum of Rs. 13,49,000/-(Thirteen Lakh Forty Nine thousand only) without making any arrangement for the conduct of the tour and thereafter refusing to refund the said amount as well as the passports are blatantly illegal and amount to a serious invasion on the rights of the complainant, besides resulting in mental torture agony stress and needless exposure to additional cost for initiating proceedings for release of the passports which the opposite party refused to hand over/return to the complainants.The complainants states that the complainants have paid an amount of Rs. 50,000/- (Fifty Thousand Only) towards cost for release of passports inclusive of court fee, process fee, indemnity bond and legal fees.
- The complainant states that they have also sent them a notice mentioning to them the details of the payment to be made to them along with the interest and then they filed the present complaint.
- Hence the Complainant prays that his complaint be granted in term of his prayers
- The complainants has relied on the list of documents dated 19/11/2021
- Upon the receipt of the notice the Opposite Parties were duly served but remained absent and the said notice was unclaimed and as such the matter proceeded exparte against them
- The Complainant No 1 Shri John Constance D’Souza filed his affidavit in evidence and has mentioned on in it the details of their case and the cause of action that arose for him to file the present complaint against Opposite party.
- The written arguments also placed on records by the Learned Advocate Ms. S Nazre and she stated that her written argument may be considered as oral arguments also.
We have gone through the records of the case and have dulyconsideredthe arguments advanced and after going through the samethe following points arisesfor our determination which is as follows and the same is answered at by giving our reasons and finding there on 1.Whether the Complainants proves that there is complete deficiency in service and that the Opposite parte have deceived them by inducing them to part of sum of Rs 13,49,000/-( Thirteen Lakh Forty Nine Thousand Only) Ans. Affirmative 2.Whether the complainant are entitled for repayment of said amount/reliefs? Ans. Affirmative REASONS on Point 1 Admittedly, in this case all the complainants had a great wish to proceed to pilgrim tour to visit holy places all over Europe for which they had saved their hard earned income to make the said dream come true and the movement they came across the advertisement of Western European Tours claimed to be conducted by the Opposite Party namely Flamingo Business Holiday Worldwide situated at Calangute Bardez Goa of which the Opposite Party Shri Robin Rodrigues was shown to be sole proprietor contacted the said office. The Complainant have placed on record the copy of the advertisement published in the newspaper showing its details about the places to be visited along with the price list .The name of the Opposite Party also stands published in the said publication and the Tour company is shown to be by the name “Flamingo Business Holiday Worldwide” .Each of the complainant have placed on record various payment receipt issued by the Opposite Party which clearly established that the cost of the tour per head as was Rs 2,28,000/- ( Two Lakhs Twenty Eight Thousand Only)but later on the Opposite Party informed the Complainants Nos 2 & 3 that they would be charged an additional amount of Rs. 4000/-(Four Thousand Only), each toward insurance as the Complainants Nos 2 & 3 were the Senior Citizen. The complainant have produced through the payment receipts and the details of the payment made to the Opposite Party . It is also seen that all the necessary payment were done from the complainants side and further on 17/2/2020 the Opposite Party instructed them to proceed to Suade Chapel, Mazalvaddo, Anjuna Bardez-Goa along with their Passports, IT returns, copies of their FDs Photographs and other documents to process their Visas, through the agent of the Opposite Party and upon verification of all these documents they were ask to return to the office at 5 Orinha Umta Vaddo, Calangute Bardez-Goa at which time when they attended their office on 23/2/2020 at that time the Opposite Party retained their original Passports and Photographs and further instructed them to pay the balance amount and accordingly the complainants payed a sum of RS. 4,39,0000/-()by a cheque drawn on SBI Calangute Branch -Goa as a full and final payment for himself and for his wife and for his son and the complainant No 2 payed a further amount of Rs 1,26,000/-(One Lakh Twenty Six thousand only ) drawn on Goa State Urban Porvorim Branch for Rs.4000/-(Four Thousand Only) for Travel Insurance of the Complainant No 2 being a senior citizen in the similar manner Complainant No 3 also paid the same amount as above to the Opposite Party being a senior citizen. Complainants No. 5 paid a sum of Rs 2,00,000/-( Two Lakh only) to the Opposite Party by a cheque drawn on Goa State Co-operative bank Calangute branch. All these document shows that all the complainants have fairly and honestly paid their respective amount per head and also the excess amount taken by Opposite party from them on other grounds and then cheated them by not conducting the tour at all. The documents clearly shows that the Opposite Party a collected a sum of Rs 13,49,000/- from the complainants but in spite of that the Opposite Party neither furnished to the complainant the flight ticket of the entire tour , Visas ,Passport Hotel accommodation, Vouchers and Free Ticket to the holy places which were the part of the itinerary and this act of the Opposite Party shows that they have deceived the complainants, acted dishonestly, cheated the complainants and as such certainly there is deficiency in service on their part to a major extent. It is seen that the act of the Opposite Parties is highly objectionable as the complainant even had to approach the JMFC Mapusa and also filed Criminal Complaint against them for the release of their passport which shows by their act they have committed a great wrongfull loss, financial loss ,mental torture and Constant stress to the complainant thus disturbing their peace of mind and that to are all the complainants had a great wish to visit the holy places of which they were deprived by the Opposite Party. All the document produced by the complainant support their case and the Opposite Party in spite of being duly served did not come forward to challenge or contest the present case and as such the case of the complainants stands fully established and proved having not been challenged or contested by the Opposite Party but also on the strength of the documents relied upon the complainants. Hence in the view of above reason point 1 stands answered in affirmative. Reasons on Point 2 Since the complainant succeeded in proving established their case they are certainly entitled for the reliefs as prayed and accordingly point 2 is also answered at in the affirmative we accordingly, pass the following order Order - The complaint stands granted
- The Opposite Party is directed to pay to the Complainant a sum of Rs.13,49,000/-( Thirteen Lakh and Forty Nine Thousand only) along with the interest at the rate of 10% per annum from February 2020 till the date of effective payments.
- The Opposite Party is also directed to pay the sum of Rs 3,00,000/- (Three Lakh Only) as a compensation for causing mental torture, agony and stress caused to the complainants.
Pronounced in the open court. Proceedings Closed. (Ms. Bela N Naik) President (Auroliano de Oliveira) Member (Rejitha Rajan ) Member | |