KUNDAN KUMAR KUMAI

This is an appeal u/s 41of the Consumer Protection Act, 2019, preferred against the order dated 19/04/2023, passed by the Ld. DCDRC, Cooch Behar, in CC/59/2021.

Brief fact of the Appellant’s Case is that, the Department of Geography of the Respondent’s Institution, intended to visit Manali, Himachal Pradesh, on an educational tour, had approached the Appellant, on the basis of an Advertisement. Thereafter, the Respondent had advanced Rs.70,000/- (Rupees seventy thousand) only, by issuing an A/c payee cheque for purchase of the Railway tickets for the students and teachers of the Geography Department. Having received the amount, the Appellant issued a bill, affirming the tour date from 27/03/2020 and return journey on 03/04/2020. With the advent of the Covid 2019 pandemic and the subsequent lock-down, the said tour had to be cancelled, due to non-movement of the trains, as per direction of the Government of India. With the cancellation of tour, the Respondent approached the Appellant, for refund of the advance amount of Rs.70,000/- (Rupees seventy thousand) only. But the Appellant failed to refund the said amount of Rs.70,000/- (Rupees seventy thousand) only and also failed to produce the Railway tickets, purchased in the name of the students and teachers. In view of the Notification issued by the Railway Board, Ministry of Railways, Government of India dated 27/03/2020, the Appellant was bound to refund the entire amount spent in the purchase of the Railway tickets. Due to such non-refunding of the above amount the Respondent lodged a complainant before the CA & FB Dept. Siliguri on 22/07/2021, when several meetings were held, but the same failed due to non-cooperation of the Appellant. Finding no alternative, the Respondent lodged a complaint before the Ld. DCDRC, Cooch Behar with necessary prayers.

The Appellant appeared to contest the claim by filing written version, wherein it was admitted that the Respondent had booked a package tour for 13 heads, for the period from 27/03/2020 to 03/04/2020, at a total cost of Rs.1,02,700/- (Rupees one lakh seven hundred) only, out of which Rs.70,000/- (Rupees seventy thousand) only had been paid. But due to Covid 2019 pandemic, the tour had been cancelled and tickets amounting to Rs.22,620/- (Rupees twenty-two thousand six hundred twenty) only, had been cancelled also. As per the tour package clause, any cancellation due to natural calamities the payment would not be refundable and the tour operator would not be responsible for any loss/damage. But as good gesture, the Appellant offered to adjust the amount with any future tour plan. It was further prayed that the consumer Case be dismissed.

After going through the evidence on record, the Ld. DCDRC, Cooch Behar, passed the impugned order, whereby, the Appellant was directed to refund a sum of Rs.85,000/- (Rupees eighty-five thousand) only, to the Respondent within 30 days from the date of passing of the impugned order, failing which the awarded amount would attract an interest of 6% per annum. The Respondent was also directed to refund the amount received from the Appellant, to each of the students and report compliance to the Commission.

Being aggrieved by the impugned order, the Appellant had preferred the instant appeal on the ground that the Ld. DCDRC, Cooch Behar, had erred in law and facts, while passing the impugned order.

                                                                Decisions with Reasons

Ld. Advocate for the Appellant at the time of final hearing had submitted that the cancellation of the tour due to natural calamities/strikes, or by any means the payment could not be refundable and the Appellant would not be responsible for any such loss/damage, was the basis of the contract between the Appellant and the Respondent. He had further submitted that the pandemic had paralyzed the entire country and the planet for which reasons, the Appellant should not be held responsible. On the other hand, the Appellant had offered to adjust the amount with future tours. Under the circumstance, the instant appeal be allowed and the impugned order be set aside.

Ld. Advocate for the Respondent, on the other hand, had submitted that the Appellant was duty-bound to refund the amount and the impugned order had been justly passed.

The fact that the tour of the Respondent was cancelled due to the on-set of the Covid 2019 pandemic, is not in dispute. The only point which has been emphasized by the Appellant at the time of hearing of the appeal, is that the contract of the tour was based on the clause, that any natural calamities/strikes that derails the tour, would not make the amount paid, refundable. But it should not be forgotten that the Covid 2019 pandemic, lock-down was one of its kind affecting not only this country, but the entire planet as well. In this regard, the Government of India rose to the occasion, to protect the Respondents/Consumers by laying down Notifications, for refund of the train tickets as well as the hotel bookings, etc. Even the Hon’ble Supreme Court, rose to the occasion to protect the Respondents/Consumers, by passing a series of judgements in favour of the consumers, wherein refund to the consumers was made non-negotiable. Under the circumstance, the clause of non-refund, which the Appellant is emphasizing and insisting, would have been applicable under normal circumstances, but given the magnitude of the lock-down of Covid 2019, encapsulating the whole of India and even the major parts of the planet, giving leeway to such clause would be to belittle and aggravate the sufferings of the Respondents/Consumers, during the Covid 2019, pandemic.

As regards, the offer of the Appellant to readjust the advance amount with the future tours by the Respondents/Consumers, though noble, cannot be accepted, as it is the prerogative of the consumers to agree to such arrangement. Moreover, it does not appear feasible, for the simple reason, that the students would be passing out and they would be needed to be refunded and the next batch might not be agreeable to any such excursion or on such terms. Apparently, the Respondents/Consumers have not agreed and the matter rests there.

In view of the above observations, the instant appeal fails.

                                           It is therefore

                                          ORDERED

That the instant appeal be and the same is dismissed on contest, but without cost.

The impugned order is hereby upheld. Non-compliance of the directions within 45 days from the date of receipt of this order, would attract the interest component levied by the order upheld,

Copy of the order be sent to the parties free of cost.

Copy of the order be sent to the Ld. DCDRF, Cooch Behar for necessary information.

Statutory amount deposited be returned from whom received.

Jt. Registrar, Siliguri Circuit Bench of WBSCDRC to do the needful.