IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 24th day of December, 2021.
Filed on 01-12-2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No.313/2020
between
Complainant:- Opposite parties:-
Smt. Susan.P.Mathew 1. M/s Soman’s Leisure Tour
Nadavallil India Pvt. Ltd, 1st Floor
Thazhakkara Holy Tuesday Shopping Mall
Mavelikara, Alappuzha Near St. Antony’s Church
(Adv. Cheriyan Kuruvila) Kaloor, Kochi-682017
Rep. by its Manaing Director
2. The Manaing Director
M/s Soman’s Leisure Tour
India Pvt. Ltd, 1st Floor
Holy Tuesday Shopping Mall
Near St. Antony’s Church
Kaloor, Kochi-682017
(Adv.Manu Roy & Devadas H Mallan for
Ops)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 35 of the Consumer Protection Act, 2019
1. Complainant’s case briefly stated is as follows:-
The complainant is now working as the Asst. Vice President and Branch Head of the Federal Bank Ltd Kayamkulam Branch. 1st opposite party is a Tour Company which offers and arrange holiday tour package to various overseas destinations. 2nd opposite party is the managing director who is the principal officer of the 1st opposite party.
2. On the basis of the advertisements of the opposite parties regarding their tour programs complainant expressed her desire to participate in a 15 days saver Tour western routes UK and Europe commencing on 8/5/2020 along with her husband Mr. Jacob Nebu Mathew. Opposite parties wide letter dtd. 8/1/2020 confirmed their partaking in the tour for a total charge of Rs. 4,57,590. (2,28,795 x 2) which includes all expenses. As advance complainant paid a sum of Rs. 50,000/- on 1/1/2020 and further sum of Rs. 50,000/- on 27/1/2020 wide receipt nos. 3643 and 3778.
3. On account of the national lockdown and the ensuing travel and Visa restrictions imposed by the Government of India due to the epidemic of Covid -19 all scheduled international passenger aircraft services from India were closed with effect from 24/3/2020. Due to the outbreak of Covid -19 pandemic since all flights were cancelled there is no alternative other than to cancel the tour programme. After the cancelation of the tour programme the complainant sent a request to the opposite parties on 27/5/20 to refund the amount remitted. The opposite parties sent a reply stating that they are not processing refunds and the amount paid as advance will be moved to the credit account of the complainant which will be valid for the next two years and the amount can be utilized to book a tour in future during this period. However complainant informed the opposite parties that she is not interested for a tour in future and required to return the cash.
4. On 24/8/2020 complainant issued a legal notice to the 2nd opposite party requiring to refund Rs.1 lakh along with interest @ 12% per annum from the date of payment till the payment. On 5/9/2020 opposite parties sent a reply notice stating that they are holding the amount and it can be used for future travel within the next 24 months. Complainant was forced to cancel the tour on account of national lockdown and the opposite parties are bound to return the amount. There is service deficiency from the part of opposite parties on account of the non refund of the cash collected. Due to non refund of the amount complainant sustained much mental agony stress, strain, harassment and inconvenience and distress amidst her profession. Hence the complaint is field to realize the advance amount along with interest, Rs. 25,000/- as compensation and Rs. 20,000/- as litigation expenses.
5. Opposite parties filed a version mainly contenting as follows:-
Complainant is not a consumer as defined u/s 2(7) of the Consumer Protection Act. The deficiency of service as stated in the complaint occurred due to none of the fault of the opposite parties and due to government policy restricting international travel due to covid-19 pandemic. Opposite party is a tour operating company and they are conducting tours to all parts of the world for the past 25 years. Receipt of Rs.50,000/- on 6/1/2020 and Rs.50,000/- on 27/1/2020 towards advance is admitted. It was collected for booking flight tickets, Visa charges, hotel booking , site tours, conveyance etc in advance. Tickets were reserved for the complainant and her husband. Thereafter Covid-19 pandemic struck the world and lockdown was implemented.
6. Coivd -19 spread had caused serious economic impact all across the world and led to the economic rescission on all sectors including travel and tourism industry. A credit shell was given to all the persons who booked their tour with the opposite party including the complainant, that the amount paid by them will be safe and can be utilized to book any tour of their choice either to the same destination or elsewhere till 31/12/2022. Complainant had informed the opposite party vide e-mail and she had admitted that she also want the postponement of the tour and not cancellation vide her reply e-mail.
7. There is no deficiency of service from the part of opposite parties and unfortunate incidents happened due to the spread of epidemic disease. The amount paid as advance is not held by opposite party but the same was used for the booking mentioned above and hence the request of refund cannot be allowed. There was no deficiency of service and laid down U/s 2(11) of the Consumer Protection Act, 2019. Hence the false, frivolous and vexatious complaint filed on experimental basis may be dismissed.
8. On the above pleadings following points were raised for consideration:-
1. Whether there is any deficiency of service from the part of opposite parties as alleged?
2. Whether the complainant is entitled to realize an amount of Rs.1,00,000/- along with interest from the opposite parties as prayed for?
3. Whether the complainant is entitled to realize an amount of Rs.25,000/- as compensation as alleged?
4. Reliefs and cost?
9. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A7 from the complainant. Opposite parties have not adduced any evidence either oral or documentary.
10. Point no.1 to 3:-
PW1, the complainant who is the Asst. Vice President and Branch Head of Federal Bank Ltd, Kayamkulam Branch approached the opposite party for a tour to UK and Europe commencing on 8/5/2020 for herself and her husband Mr. Jacob Nebu Mathew. Opposite parties vide letter dtd. 8/1/2020 confirmed tour package for a total charge of Rs. 4,57,590/-. Accordingly on 1/1/2020 complainant paid Rs. 50,000/- and on 27/1/2020 again paid Rs. 50,000/-. However due to the outbreak of covid-19 pandemic there was a national wide lockdown and international flights were cancelled. So the tour scheduled for 8/5/2020 become impossible and the complainant demanded to return the advance amount as per Ext.A4 e-mail dtd. 27/5/2020. Opposite party sent a return email stating that it is not possible to refund the cash and the amount will be kept in a credit account which will be valid for next two years and the complainant can avail the tour till 2022. Since the suggestion was not acceptable to the complainant she sent Ext.A5 legal notice on 24/8/2020 for which Ext.A6 reply notice was sent on 5/9/2020 reiterating the same contentions taken in the reply email. Since the dispute was not settled the complaint was filed. Complainant got examined as PW1 and Ext.A1 to A7 were marked. Opposite parties filed a version in which they admitted receipt of Rs. 1 lakh as two installments. According to them they had already reserved air tickets and so it is not possible to refund the amount. However according to them a credit shell is given to all persons including the complainant and the tour can be done within two years ie, on or before 31/12/2022.
11. The fact that PW1 booked the tour and that an amount of Rs. 1 lakh was paid as two installments was admitted by the opposite parties. It is also proved by Ext.A2 and A3 receipts. As per Ext.A4 email on 27/5/2020 complainant requested to cancel the tour since it was impossible on account of covid-19 pandemic. It was also explained that the tour was planned by availing her LFC which is due by 30/9/2020. Since it was not possible to conduct the tour before 30/9/2020 she demanded to return the amount. The contention taken by the opposite parties is that they had already booked air tickets and tour arrangements and so it was not possible to refund the same. Their contention is that a credit shell is given and PW1 can avail the tour within a period of two year ie, on or before 31/12/2022. Though the opposite parties filed a detailed version they did not enter the witness box to prove their case on oath. As held by the Hon’ble Surpeme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao).
“WHERE a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”
12. Here in this case as discussed earlier receipt of Rs. 1 lakh is admitted by the opposite parties. It is also an admitted fact that due to the spread of Covid-19 pandemic tour program scheduled on 8/5/2020 became impossible. Opposite parties have offered a credit shell for two years, so that complainant can avail the tour on or before 31/12/2022. In Ext.A4 email as well as during cross examination PW1 stated that the tour was planned by availing her LFC which is due by 30/9/2020. If the tour is not conducted before 30/9/2020 the amount will be lapsed and so PW1 was not in a position to conduct the tour after 30/9/2020.
13. The contention taken in the version as well as in Ext.A4 reply email and Ext.A6 reply notice is that the opposite party had already booked air tickets and hotel arrangements and so they are not possible to return the cash. Though such a contention was taken by the opposite parties not even a scrap of paper is produced to prove that air tickets were booked and the hotel arrangements were made. As stated earlier they even did not mount the witness box to prove their case on oath. The learned counsel appearing for the complainant relied upon a judgment of the Hon’ble Supreme Court dtd. 1/10/2020 in Writ petition (C) No. 570 of 2020, Writ Peition(C) No.595 of 2020 and Writ Petition No.952 of 2020. In the said judgment the Hon’ble Supreme Court had directed all the travel agencies either to extend the travel with the same advance amount or to return the air fare. However it was the choice of the passenger whether to travel again or to claim for refund. In tune with the judgment of the Hon’ble Supreme Court Director General of Civil Aviation Government of India issued a circular on 7/10/2020 by which the travel agencies were directed to return the advance amount. So from the judgment of Hon’ble Supreme Court and the circular of DGCA Government of India it is pellucid that opposite parties have no authority to withhold the amount and direct to the complainant to avail the tour program within two years. Their only option is to return the amount paid as advance. In said circumstances complainant is entitled to realize the advance amount along with interest from the date of Ext.A3 cancellation ie, on 27/5/2020.
14. Complainant is seeking an amount of Rs.25,000/- on account of compensation as damage sustained to her due to mental agony, strain, harassment , inconvenience etc.. Admittedly PW1 a lady, is working as Asst. Vice President and Branch Head of the Federal Bank Ltd. Kayamkulam branch. At the time of examination ie, on 7/12/2021 she was aged 58 yrs. Definitely the act of the opposite parties withholding the advance amount and requesting her to avail the same within two years will cause mental agony. PW1 has clarified that her LFC will end during September 2020 and so she is unable to extend the tour. Inspite of the judgment of the Hon’ble Supreme Court and the circular of DGCA opposite parties withheld the amount and requested complainant to avail tour within two years for which they have no right. Further complainant was dragged to this Commission to redress her grievance inspite of request by e-mail and legal notice. So complainant is entitled for compensation and cost. These points are found infavour of the complainant.
15. Point No.4:-
In the result complaint is allowed.
A) Complainant is allowed to realize an amount of Rs.1,00,000/-(Rupees One lakh only) along with interest @ 9% per annum from 27/5/2020(Ext.A4 date of cancellation) till realization from the opposite parties.
B) Complainant is allowed to realize an amount of Rs.25,000/- (Rupees Twenty-five thousand only) as compensation from the opposite parties.
C) Complainant is allowed to realize an amount of Rs.5000/- (Rupees Five thousand only) as cost.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 24th day of December, 2021.
Sd/- Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - Susan.P.Mathew (Complainant)
Ext.A1 - Booking Confirmation Letter dtd.8/1/2020
Ext.A2 - Receipt dtd. 10/1/2020
Ext.A3 - Receipt dtd. 27/1/2020
Ext.A4 - Reply dtd. 27/5/2020
Ext.A5 - Copy of Notice
Ext.A6 - Reply Notice dtd.5/9/2020
Ext.A7 - Copy of Mail from Federal Bank
Evidence of the opposite parties:- NIL
//True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
