DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 28th day of December 2023.
Filed on: 13/09/2021
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 324/2021
COMPLAINANT
Anila P.U, W/o. Arun Babu, Mannullil House, Thiruvankulam P.O., Ernakulam -682 305.
B. Mohanlal Associates, Vigneswara, RPRA-70, Ayyappankavu, Pachalam P.O., Kochi- 682 012.
(Rep. by Adv. B. Mohanlal, Vigneswara, House No. 63/32, Pachalam P.O., Kochi 682012)
Vs.
OPPOSITE PARTIES
TRAVBOND, C-18 First Floor, Acharya Niketan, Mayur Vihar, Delhi, 110091, represented by its Managing Director.
F I N A L O R D E R
D.B. Binu, President.
A brief statement of facts of this complaint is as stated below:
The complaint is filed under Section 35 of the Consumer Protection Act, 2019. This legal dispute is between a newlywed woman (the complainant) and a tour package operator (the opposite party). The complainant had engaged the services of the operator to arrange a honeymoon trip to Bali, Indonesia, for herself and her husband. She made several payments totalling Rs. 50,000, including an advance payment, flight and visa charges, and additional costs due to changes in flight arrangements.
However, due to the COVID-19 pandemic, the complainant had to cancel her trip. She requested a refund from the tour operator, who refused and offered only a credit note for future travel. The complainant made several attempts to recover her money, but the operator was unresponsive or evasive.
Faced with financial difficulties during the pandemic and receiving no refund, the complainant experienced significant distress and hardship. Consequently, she filed a complaint, seeking a refund of the Rs. 50,000 paid, along with interest, and an additional Rs. 1,00,000 as compensation for mental agony caused by the operator's actions. The complainant requests the Commission to order the tour operator to refund the amount with interest and pay compensation and the cost of the proceedings.
2) Notice
The notice was sent to the opposite party but was returned by the postal authorities marked as 'refused.' This has been treated as sufficient service on the opposite party, qualifying as deemed service. Since they did not provide their version, they have been set as 'ex parte' in the proceedings.
3). Evidence
The complainant submitted an ex-parte proof affidavit along with nine documents, which were marked as Exhibits A-1 to A-9.
Exhibit A1: Email from the tour operator to the complainant detailing their tour package services.
Exhibit A2: Confirmation and transaction details of the complainant's advance payment of Rs 10,000.
Exhibit A3: Email from the tour operator requesting an additional advance of Rs 40,000 for flight booking.
Exhibit A4: Confirmation and transaction details of the complainant's additional advance payment of Rs 30,000.
Exhibit A5: Email from the tour operator informing the complainant of a Rs 1,000 increase in flight fares.
Exhibit A6: Confirmation and transaction details of the complainant's payment of Rs 10,000, addressing the fare hike.
Exhibit A7: Email from the complainant to the tour operator, cancelling the Bali tour package due to the COVID-19 pandemic.
Exhibit A8: Email from the complainant reconfirming the cancellation of the Bali tour and requesting a refund due to the pandemic.
Exhibit A9: Lawyer's notice sent by the complainant to the tour operator on 26/07/2021, which was returned unclaimed.
4) The issues mentioned above are considered together and are answered as follows:
In the present case in hand, as per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. Copies of Confirmations and transaction details of the complainant's advance payments (Exhibits A-2, A4, and A6). Hence, the complainant is a consumer as defined under the Consumer Protection Act, 2019. (Point No. i) goes against the opposite party.
The evidence presented included an ex-parte proof affidavit filed by the complainant, and it was unchallenged by the opposite party. Therefore, the complainant's claims were considered credible and supported by the evidence. Therefore, the complainant requests the commission to grant the relief sought, including compensation for mental agony and unfair trade practices.
The opposite parties’ conscious failure to file their written versions in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations levelled against them. Here, the case of the complainant stands unchallenged by the opposite party. We have no reason to disbelieve the words of the complainant against the opposite party. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
Analysis and Legal Reasoning:
- Deficiency in Service and Negligence: The complainant's case primarily revolves around the issue of deficiency in service and negligence on the part of the opposite party. It is essential to determine whether the opposite party's refusal to provide a refund in light of the COVID-19 pandemic constitutes a deficiency in service and negligence.
In this context, it is pertinent to refer to Section 2(7) of the Consumer Protection Act, 2019, which defines a consumer as a person who avails of any services for consideration paid or promised. The complainant falls within this definition as she paid consideration to the opposite party for their services. Therefore, she is entitled to the protection afforded by the Consumer Protection Act, 2019.
The evidence presented, including the emails and transaction details (Exhibits A-2, A4, and A6), establishes that the complainant made payments to the opposite party for the tour package services. The cancellation of the trip due to the COVID-19 pandemic was beyond the complainant's control and fell under unforeseen circumstances.
The tour operator's refusal to refund the amount paid and instead offering a credit note for future travel constitutes a deficiency in service, as the complainant could not avail of the services she had paid for. This refusal also amounts to negligence on the part of the opposite party, as they failed to consider the extraordinary circumstances and the financial hardship faced by the complainant.
- Relevant Case Law: The Hon’ble National Commission's order dated 2017 (4) CPR page 590 (NC) is cited as precedent, where a similar stance was taken. In that case, the National Commission upheld the complainant's claim when the opposite party failed to challenge the allegations and evidence presented by the complainant. This precedent supports the complainant's case and strengthens the argument for finding in her favor.
- Liability of the Opposite Party: The opposite party's conscious failure to file their written version, despite receiving notice, is equivalent to an admission of the allegations leveled against them. In light of this admission and the unchallenged evidence provided by the complainant, it is clear that the opposite party is liable for deficiency in service and negligence. The refusal to refund the amount paid by the complainant during a pandemic-induced cancellation is an unfair trade practice.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite party is liable to compensate the complainant.
We find the issue Nos. (i) to (iv) are also found in favour of the complainant for the serious deficiency in service and unfair trade practices that happened on the side of the opposite party. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss... etc. due to the negligence on the part of the opposite party.
Hence the prayer is partly allowed as follows:
- The Opposite Party Shall refund a sum of ₹50,000 (Fifty Thousand) to the complainant, which was paid for the tour package.
- The Opposite Party Shall Pay a sum of ₹40,000 (Forty Thousand) as compensation to the complainant for the inconvenience and mental agony caused due to their unfair trade practices and deficiency in service.
- The Opposite Party shall also pay the complainant a sum of ₹10,000 (Ten Thousand) towards the cost of the proceedings.
The Opposite Party shall be liable to comply with the above-mentioned directions within 30 days from the date of receipt of a copy of this order. Should they fail to comply, the amounts specified in points (i) and (ii) will accrue interest at the rate of 9% per annum. This interest will be calculated from the date of the complaint (13.09.2021) until the date of realization.
Pronounced in the open Commission on this the 28th day of December, 2023
Sd/-
D.B.Binu, President
Sd/-
V. Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/By Order
Assistant Registrar
Appendix
Complainant’s evidence
Exhibit A1: Email from the tour operator to the complainant detailing their tour package services.
Exhibit A2: Confirmation and transaction details of the complainant's advance payment of Rs 10,000.
Exhibit A3: Email from the tour operator requesting an additional advance of Rs 40,000 for flight booking.
Exhibit A4: Confirmation and transaction details of the complainant's additional advance payment of Rs 30,000.
Exhibit A5: Email from the tour operator informing the complainant of a Rs 1,000 increase in flight fares.
Exhibit A6: Confirmation and transaction details of the complainant's payment of Rs 10,000, addressing the fare hike.
Exhibit A7: Email from the complainant to the tour operator, cancelling the Bali tour package due to the COVID-19 pandemic.
Exhibit A8: Email from the complainant reconfirming the cancellation of the Bali tour and requesting a refund due to the pandemic.
Exhibit A9: Email from the tour operator to the complainant stating that the flight amount is non-refundable under normal cancellation terms.
Exhibit A10: Lawyer's notice sent by the complainant to the tour operator on 26/07/2021, which was returned unclaimed.
Opposite party’s evidence
Nil
kp/
Despatch date:
By hand:
by post: C.C. No. 324/2021
Order date: 28/12/2023
