Date of filing: 08.10.2020
Date of Judgment: 22.12.2022
Mrs. Sashi Kala Basu, Hon’ble President.
This consumer complaint is filed under section 35 of the Consumer Protection Act, 2019 by complainants Mr. Probal Dutta and Mr. Tarun Malhotra alleging unfair trade practice on the part of the opposite party (referred as O.P. hereinafter) namely M/s. Shoes on Loose Private Limited represented by its directors (1) Mohit Poddar (2) Kritagaya Triparthi and (3) Gaurav Kalyan.
The case of the complainants in short is that on 07.12.2019 they booked Turkish Triangle Tour with the O.P. scheduled to be held on 17.05.2020 till 25.02.2020 (8 nights & 9 days) for themselves and for their respective family members consisting of six adults & one child and paid an amount of Rs. 5,24,000/- out of total price of Rs. 7,73,001/-. Due to Covid 19 pandemic and lock down, the Turkish Triangle Tour could not be proceeded by the O.P. But in spite of several request through mails, O.P. failed and neglected to refund the sum of Rs. 5,24,000/-. Complainants started the communication regarding refund with the O.P. since 23.03.2020 i.e. 55 days prior to the Turkish Triangle Tour. Indigo Airlines although refunded an amount of Rs. 1,67,993/- to the account of O.P. company on 29.06.2020 duly confirmed through e-mail dated 19.07.2020 in reply to complainants mail dated 18.07.2020 but the same has not been refunded in the account of the complainants. O.P. suddenly thereafter sent a purported replacement voucher of a new tour of Rome, Venice etc. in place of Turkish Triangle Tour on 13.06.2020 which revealed that the validity date till 31.03.2021 to be booked before 31.10.2020 which in fact was incapable / or impossible of being performed due to worldwide Covid 19 pandemic situation and prone to life risk. The new / fresh Rome etc. tour and credit shell proposed by the O.P. were never part of the deal as per terms and conditions of the Turkish Triangle Tour. Ultimately seeing no other alternatives, complainants sent a notice dated 22.07.2020 through their Ld. Advocate to O.P. asking to refund the sum of Rs. 5,24,000/- inclusive of Indigo Airlines PNR amount of Rs. 1,67,993/- and to pay 14% per annum interest on the said sum and compensation. The said notice was replied by the O.P. on 24.08.2020 containing untrue, baseless and frivolous statements. Thus present complaint is filed by the complainants praying for directing the O.P. to refund Rs. 5,24,000/-, to pay 14% interest accrued on the said sum, to pay compensation of Rs. 2,00,000/- towards mental and physical agony and Rs. 50,000/- towards legal expenses and cost of proceedings.
O.P. has contested the case by filing written version denying and disputing the allegations made by the complainants contending specifically that complainants paid only Rs. 5,24,000/- out of Rs. 7,73,001/- and failed to make payment of the balance amount despite repeated reminders. As per the terms agreed between the parties, complainants are not entitled to a full refund of Rs. 5,24,000/-. As per the terms “In case of local attractions are closed for maintenance / weather / conditions / Govt. Order / strike / curfew / natural calamity / any other unforeseen reason, SOL will try its best to reimburse the appropriate amount against the same in case of refund is possible. However SOL is not obligated for the same and cannot be held liable against it”. As per the cancellation policy only 75% of the invoice amount was refundable if request for cancellation was made 25 days prior to the schedule date of tour.
It is further case of the OP that complainants were offered three options and vide e-mail dated 30/04/2020 informed to the complainants that in case complainants do not opt for any option by 30/04/2020, O.P. would proceed to cancel the trip and chose option of issuing a replacement voucher worth 3200 Euros to the complainants on 13.06.2020 for a new / fresh tour of Rome, Florence, Venice, Zurich etc. which was valid till 31.03.2021. In no case, O.P. is obligated to refund the entire amount of Rs. 5,24,000/- and thus O.P. has prayed for dismissal of the complaint with cost.
On perusal of the record it appears that during the course of trial, complainants filed examination in chief on affidavit along with documents relied but O.P. did not take any step to file any questionnaire, neither they filed evidence in examination in chief in spite of opportunities given. In fact O.P. did not take any step after filing of the written version. So argument of the Ld. Advocate for the complainants has been heard. Complainants have also filed the written arguments.
So the following points require determination:-
- Whether there has been unfair trade practise on the part of the OPs?
- Whether the complainants are entitled to the reliefs as prayed?
DECISION WITH REASON
Both the points are taken up together for a comprehensive discussion. In this case it is an admitted fact that complainant had booked ‘Turkish Triangle Tour’ which was to be held from 17.05.2020 to till 25.05.2020 and complainant paid sum of Rs. 5,24,000/- out of total price of Rs. 7,73,001/- . Admittedly tour could not be commenced due to Covid – 19 pandemic and thus complainant asked for refund of sum paid by him of Rs. 5,24,000/- on 23.03.2020 i.e. 55 days prior to the scheduled date. Only contention raised by the O.P. is that as per the terms of contract, “In case local attractions are closed for maintenance / weather conditions / Govt. Orders / strike / curfew / natural calamity / any other unforeseen reason, SOL will try its best to reimburse the appropriate amount against the same, in case refund is possible. However SOL is not obligated for the same and cannot be held liable against it”. So according to O.P. he is not under any obligation to refund the sum.
It is further contended by the O.P. that complainant was given 03 options:- firstly to reschedule the trip to a later date till about a year by paying the balance amount, secondly, modify the trip by making changes to fit the budget and thirdly cancel the trip as per the terms and condition agreed to and use the refund as a credit voucher on the O.P.’s network for any further bookings.
Since complainant did not opt for any, O.P. on its own accord chose option third and issued a replacement voucher for a new tour of Rome, Florance, Venice etc. of worth 3200 euros.
It may be pertinent to point out that on a careful scrutiny of the conditions referred to above cited by the O.P. in its written version clearly suggests that the same will be applicable only when the tour has already commenced and on going to the place of tour if the local attractions are closed for the reason as mentioned therein than the question of extent of liability of tour operator (O.P. herein) will arise. But in this case tour itself could not be commenced for the unprecedented reason of Covid – 19 pandemic and the O.P. came to know about the cancellation much before the scheduled date. So O.P. cannot shy away its responsibility quoting the said terms.
In writ petition (C) No. 570 of 2020 and 590 of 2020 Hon’ble Supreme Court directed the Airlines to full refund of the amount paid by the travellers / customers during the period of lockdown. So same principles will have to apply in cases of booking made with travel agency for a tour scheduled to be held during the lockdown period.
In this case O.P. has not filed any evidence in support of its claim that Indigo Airlines has deposited the amount in the bank account of the complainant or returned it in the form of credit shell. Whereas complainant in his evidence in examination in chief has categorically stated Indigo Airlines although have refunded an amount of Rs. 1,67,993/- to the O.P. on 29.06.2020 but O.P. has not refunded the same to the complainant. Said claim of the complainant is substantiated from the mail sent by the Indigo Airlines on 19.07.2020 to the complainant stating that “we would like to inform you that for your reservation under the PNR EM9D8K an amount of INR 1,67,993/- has already been refunded in your travel agency account from our end on 29th June, 2020”. So it is evident that in spite of receiving of the flight charges from the concerned Airlines, same was not paid to the complainant; which is nothing but a malafide act or unfair trade practice on the part of the O.P.
As per own terms of the O.P. as per Proforma Invoice, in case of cancellation of tour “75% of the total invoice amount is refundable in case of cancellation in 25 days before the arrival”. So O.P. ought to have refunded the 75% if one goes by their own terms and conditions but here again O.P. sought to suggest that the same applies only when full tour price is paid; forgetting the fact that last payment instalment due was to be paid by the complainant on 15th April, 2020 whereas national lockdown was already started from 23rd March, 2020. So it was completely illegal to expect payment of balance sum when O.P. itself knew that tour could not be proceeded with.
So non-refund of at least 75% of the amount again reveals that O.P. had no intention to refund any sum to the complainant.
Coming to the ‘replacement voucher’, since complainant never gave his consent for such tour, O.P. could not force the same on the complainant and his family members. Moreover there is no contrary evidence to the claim of the complainant that the tour price of the said ‘replacement voucher’ is much less as compared to the tour price of Turkish Triangle Tour but there was no whisper in the replacement voucher about refund of the excess / balance amount. According to replacement voucher, validity of travel date was til 31.03.2021 and was to be booked before 31.10.2020. There cannot be any denial that due to worldwide Covid – 19 pandemic situations, nobody would want to risk their life. So complainant was no exception and as such his claim that he did not want to risk his life or the lives of his family members, cannot be discarded.
O.P. has also contended an amount of Rs. 14,000/- has been paid by the O.P. to its vendors for the visas but there is no document filed showing payment of such amount or that any visa was obtained. So in the absence of any evidence, such contention of the O.P. cannot be accepted especially when 55 days before the commencement of tour, same was cancelled.
So in view of the discussions as highlighted above, we find that the O.P. is liable to refund the entire sum of Rs. 5,24,000/- and also liable to pay compensation for harassment and mental agony, in the form of interest.
Hence
ORDERED
CC/234/2020 is allowed on contest. O.P. is directed to pay sum of Rs. 5,24,000/- to the complainant along with interest on the said sum @ 10% p.a. from the date of last payment made by the complainant i.e. 21.02.2020 to till this date, within two months.
O.P. is further directed to pay Rs. 12,000/- as litigation cost to the complainant. In failure to make the payment, the entire sum shall carry further interest @ 10% p.a. till its realisation.
