Dt. 06.04.16  

JAGANNATH BAG, PRESIDING MEMBER     

          The present appeal is directed against the Order, dated 28.10.2014, passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II , in CC No. 208 of 2014 , whereby the complaint was allowed on contest against the OPs with cost.

          The Complainant’s case, in brief, was as follows:

          The Complainant booked pilgrimage tour to  sacred Mecca for himself and for his wife upon going through an advertisement of the OPs published in a daily Urdhu Newspaper, namely, Azad Hind ,  dated 11.08.13  by paying  a sum of Rs. 7,80,000/- through an account payee cheque . The OPs encashed the cheqeue, but just  two days before the pilgrimage tour the Complainant was informed that VISA for the pilgrimage tour could not be arranged. Thereafter, since the cancellation of the tour was done at the whims of the OPs , the Complainant claimed refund of the money but without any result . A legal notice,  dated 25.03.14 was sent to the OPs.  Inspite of receipt of the legal notice, no reply was given which showed malicious and ulterior motive of the OPs  to deceive the Complainant. In the said circumstances, the complaint petition was filed with prayer for direction upon the OPs to refund the sum of Rs. 7,80,000/- along with compensation of Rs. 2,00,000/-.

          The complaint petition was contested by the OPs who filed W.V., whereby it was asserted that the OP No.1, i.e., M/S Al Israa Tours and Travels( Pvt.) Ltd. is a Pvt. Ltd. Co. The Complainant never made any payment either to OP No.1 or OP No.2 in his capacity as Director of OP No.1. Denying all material allegations , it was further stated that neither OP No.1 nor OP No.2 in his capacity as director of OP No.1 had any connection with the Complainant and there was no booking done for the Complainant. Hence, the Complainant was not entitled to get any refund and compensation from the OPs.

       Ld. Forum below upon consideration of the complaint , the W.V. and also the arguments advanced by the Ld. Lawyers of both parties, observed that the money receipt was issued by Al Israa Tours and Travels, dated 16.08.2013 and the said receipt carried the same trade mark (Logo) as noted in the advertisement of the said company. OP No.2 was found to have been conducting the tour and travel trading in a deceitful manner and OP No.2 received the money by issuing receipt No. 140 of Al Israa Tours and Travels. The sum of Rs. 7,80,000/- was received by OP No.2 on behalf of OP No.1 and he encashed that amount but did not render service  which was an unfair trade practice. It was held that the OPs jointly and severally deceived the Complainant without giving proper service,  as Al Israa Tours Travels and Al Israa Tours and Travels (Pvt.) Ltd., are same and identical establishment as indicated by the advertisement and the receipt carrying same trade mark. With such observations Ld. Forum below allowed the complaint with direction upon the OPs to refund Rs. 7,80,000/- and to pay compensation of Rs. 50,000/- to the Complainant/ Respondent apart from payment of cost of Rs. 10,000/-.  A sum of Rs. 25,000/- as penal damage was imposed against the OPs with direction for payment of the said sum to the account of the Ld. Forum below. It was ordered that in case of failure to comply the order penal interest @ Rs. 500/- shall be payable per day till full satisfaction of the decree.

          Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the OPs / Appellants have come up before this Commission with a prayer for direction to set aside the impugned order.  

          Ld. Advocate appearing for the Appellant submitted that Al Isra Tours and Travels Pvt. Ltd and Al Isra Tours Travels are of separate identity   and they have separate legal  entity which the Ld. Forum below failed to appreciate . The Complainant / Respondent was the client / customer of Al Isra Tours Travels and not of Al Isra Tours and Travels Pvt. Ltd. The Respondent is not connected with the Appellant No. 1 or its Director being Appellant No.2 namely, Rafique Ahmed. There was no dealing between the Appellants and the Respondent. Accordingly, the complaint should not have been entertained by the Ld. Forum below and no deficiency  on the part of the Appellants could be substantiated. The impugned order, therefore , is liable to be set aside. 

             Ld. Advocate appearing for the Respondent/Complainant submitted that from all available records the phone No, e-mail Id and the names of owners of both the concerns are the same and identical.  No document has been filed by the Appellants showing that Ms. Al Israa Tours and Travel Pvt Ltd. and Al Israa Tours Travel are different service providers . The same Rafique Ahmed is running the companies from the Trade Licence of Al Isra Tours Travels. It was evident that they did not have bank account during accepting the payment from the Respondent and accordingly they requested for and accepted the payment in the name of Al Isra Tours Travels for which they were operating the account at the period. Both the concerns are having same persons as partners and directors . Ld. Forum below passed the order in a judicious way keeping in view all material facts and circumstances.  As such, the impugned order deserves to be upheld with dismissal of the appeal.

            The point for consideration is whether the impugned order suffers from material irregularity or legal infirmity.

          The memorandum of appeal has been gone through along with copies of the impugned order, the petition of complaint , the W.V filed by the OPs before the Ld. Forum below and other documents including evidence in-chief of the Complainant , questionnaire put to the Complainant by the OPs , evidence filed by the OPs. etc.

                             Decision with Reasons :

          It is a fact that M/S Al Israa Tours and Travels (Pvt) Ltd. published an advertisement for Haj pilgrimage  in response to which the Complainant booked the pilgrimage tour and paid a cheque for Rs. 7,80,000/- . The money receipt was issued for Al-Israa Tour Travels vide receipt No. 140 dt. 16.08.2013. The same was encashed .

          The identity of the OP No.1 is disputed with assertion that no transaction was made by the OP No.1 or OP No.2.  Ld. Forum below observed that the two entities are different  in name only but while the advertisement was made by Al-IsraaTours and Travels (Pvt) Ltd. the money receipt for the sum of Rs. 7,80,000/- was issued in the name of Al-Israas Tours  Travels  . It is true that though there is a difference in name of the two organizations, the licence issued by the Kolkata Municipal Corporation shows that the office of both the organizations are at the same location and they are doing the same business i.e., travelling agency. Strikingly enough, the business logo of both the organizations are the same as evident from the money receipt and the advertisement issued by OP No.1 in the newspaper. The nexus between Al-Israa Tours Travels and M/s Al- Israa Tours and Travels (Pvt) Ltd. is evident. No documents or evidence has been adduced by the OPs/Appellants denying receipt of the cheque. The Appellants are admittedly related having a close nexus. There is no case made out by the Appellants / OPs with evidence that the OPs / Appellants had no connection with the Respondent /Complainant.

          Going by the above discussion and relying upon the materials on record it can be reasonably presumed that the two establishments , though different in name, are managed and owned by the  same persons and as such the denial of the OP/Appellants that they did not receive the money does not stand. It is therefore prudent to hold that the Ld. Forum below adjudicated the matter in a reasoned manner. However, the compensation of Rs. 50,000/- being allowed by the Ld. Forum below further penalization with penal damage / penal interest may be dispensed with . Accordingly, the impugned order may be modified by allowing the appeal in part.  Hence,

                                                Ordered

That the appeal be and the same is allowed in part with modification of the impugned order to the effect that the Appellants shall jointly and severally refund a sum of Rs. 7,80,000/- to the Respondent/Complainant along with compensation of Rs. 50,000/- and costs of Rs. 10,000/- as allowed by the Ld. Forum below. Other parts of the impugned order shall stand deleted. The Appellants shall pay the entire sum as ordered  herein within a period of 40 days , failing which penal interest @ 8% p.a. shall accrue till full realization of the decreed amount. There shall be no separate order as to costs.