DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 23rd day of January 2024
Filed on: 01/03/2018
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C C NO. 96/ 2018
COMPLAINANT
Raju P.M, Poozhikunnel Veedu, (11/365). Perumbayikadu P.O, Kottayam
(By Adv.Shyam, Ann’s Apartment, Amulya Street, Kacheripady, Kochi-18)
Opposite Parties: -
- Yugesh Xavier, Managing Partner, Indian Wings Holidays, GIB, Netage
Arcade, Church Landing Road, Pallimukku, Kochi- 682016
- MarymolJolly, Manager-Sales, Indian Wings Holidays, GIB, Netage
Arcade, Church Landing Road, Pallimukku, Kochi- 682016.
- Baburaj, P.R.O, Indian Wings Holidays, GIB, Netage Arcade, Church
Landing Road, Pallimukku, Kochi- 682016
(OPS 1, 2, and 3 rep. by Adv.P.Rajeeve, K.V. Jayadeep Menon, T.P.Ramesh Thengumpillil, and Krishnapriya P, Kolatheri Shopping Complex, Chittoor Road, Ernakulam, Kochi-682 016)
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 was filed under Section 12 (1) of the Consumer Protection Act, 1986. The complaint revolves around the claim for a refund of Rs. 1,40,000 for a trip to Sri Lanka that he had booked.
However, a check issued by the opposite party on 16.01.2018 for the refund amount bounced due to an incorrect signature and insufficient funds. The complainant stated that if the opposite party had genuinely intended to refund the amount, such an incident should not have occurred. This raises suspicions of dishonest intent on the opposite party part.
The complainant emphasizes that the legal battle surrounding this issue has spanned five years, causing significant distress to the complainant, who is now 69 years old. The complainant believes that this prolonged legal ordeal entitles them to compensation in addition to the refund of Rs. 1,40,000.
Furthermore, the trip to Sri Lanka was cancelled due to the negligence of the opposite party company, and the complainant asserts that the opposite party is fully liable for this negligence.
In conclusion, the complainant requests that their prayers outlined in the complaint, which likely include the refund, compensation for the legal ordeal, and holding the opposite party accountable for the trip cancellation, be granted by the commission.
2). Notice
The Commission issued notices to the opposite parties. The opposite parties received the notices and submitted their versions.
3) THE VERSIONS OF THE 1ST, 2ND, AND 3RD OPPOSITE PARTIES
The opposite party submitted that the complaint is not maintainable in law and is filed for extortion without a genuine cause of action.
They partially admit receiving an advance payment for a Srilankan tour package but state that the complainant did not provide necessary documents and contact for the tour, leading to its cancellation. They stated that the complainant's payment was made late.
The opposite parties deny responsibility for the cancellation of the tour, stating that it was due to the complainant's delay and the high fare rates during the New Year period.
They offer to reschedule the tour but claim that the complainant refused and caused problems at their office. They express their willingness to refund the complainant's money.
They assert that there was no deficiency in service or unfair trade practices on their part, and therefore, the complainant is not entitled to any relief. They stated that the complaint lacks a genuine cause of action and should be dismissed.
In conclusion, the 1st, 2nd, and 3rd opposite parties deny the allegations in the complaint, stating that it lacks merit and should be dismissed. They submitted that the tour's cancellation was due to the complainant's actions, and they are willing to refund the money.
4) Evidence
The complainant did not file a proof affidavit, but he submitted nine documents, which were marked as Exhibits A-1 to A-9:
Exhibit A-1: An email dated 13.10.2017, including a pamphlet detailing the program of the Sri Lankan tour package.
Exhibit A-2: A true copy of the Receipt of Rs. 40,000/- issued by the company, dated 26.10.2017.
Exhibit A-3: A true copy of the receipt of Rs. 40,000/- issued by the company on 27.10.2017.
Exhibit A-4: A true copy of the receipt of Rs. 1 lakh issued by the company on 26.12.2017.
Exhibit A-5: A true copy of a receipt of Rs. 1 lakh issued by the company on 26.12.2017.
Exhibit A-6: A true copy of a letter dated 29.10.2017 issued by Mr. Yugesh Xavier.
Exhibit A-7: Certified copy of a bank's cheque dated 16.01.2018 for Rs. 1,40,000/-.
Exhibit A-8: A true copy of the returned memo indicating a discrepancy in the signature on the cheque.
Exhibit A-9: A copy of the memo returned stating that “funds insufficient “in the account.
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant.
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
The dispute centers around a cancelled trip to Sri Lanka. The complainant alleges that the opposite party’s hesitation to issue a refund, along with the protracted legal proceedings and the complainant senior age, indicate deceitful motives. Consequently, the complainant is seeking not only the initial refund but also additional compensation.
In the catena of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the commission. Mere allegations of negligence are insufficient to support the complainant's case. Consequently, the complainant has failed to prove any deficiency in service or negligence on the part of the opposite parties.
In the case of SGS India Ltd Vs. Dolphin International Ltd 2021 AIR SC 4849 held that:
“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4 , this court held that the burden of proving the deficiency in service is upon the person who alleges it. “
Upon careful consideration of the evidence, legal arguments, and precedents, this Commission finds in favour of the opposite parties for the following reasons:
Lack of Evidence of Deficiency in Service or Negligence: The complainant alleged that the opposite party's refusal to issue a refund and the protracted legal proceedings were indicative of deceitful motives. However, there is a lack of concrete evidence to support these claims. The opposite parties have denied responsibility for the cancellation of the tour, stating that it was due to the complainant's delay and high fare rates during the New Year period. They have also offered to reschedule the tour and refund the complainant's money, demonstrating their willingness to resolve the matter.
In light of the above, this Commission finds that the complainant has failed to provide sufficient evidence of deficiency in service or negligence on the part of the opposite parties. The complainant's allegations remain unsubstantiated.
In conclusion, the complaint filed by the complainant is not maintainable due to the failure to adhere to procedural requirements, and there is a lack of evidence to establish any deficiency in service or unfair trade practice on the part of the opposite parties. Therefore, the complaint is dismissed. The opposite parties are not liable to provide any relief or compensation to the complainant.
After careful consideration, the case presented by the complainant is considered without merit. As a result, the following orders have been issued.
ORDER
Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. These issues (i to iv) are unfavourable to the complainant. Consequently, the complaint is dismissed. No cost.
Pronounced in the Open Commission on this the 23rd day of January 2024.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s evidence
Exhibit A-1: An email dated 13.10.2017, including a pamphlet detailing the program of the Sri Lankan tour package.
Exhibit A-2: A true copy of the Receipt of Rs. 40,000/- issued by the company, dated 26.10.2017.
Exhibit A-3: A true copy of the receipt of Rs. 40,000/- issued by the company on 27.10.2017.
Exhibit A-4: A true copy of the receipt of Rs. 1 lakh issued by the company on 26.12.2017.
Exhibit A-5: A true copy of a receipt of Rs. 1 lakh issued by the company on 26.12.2017.
Exhibit A-6: A true copy of a letter dated 29.10.2017 issued by Mr. Yugesh Xavier.
Exhibit A-7: Certified copy of a bank's cheque dated 16.01.2018 for Rs. 1,40,000/-.
Exhibit A-8: A true copy of the returned memo indicating a discrepancy in the signature on the cheque.
Exhibit A-9: A copy of the memo returned stating that “funds insufficient “in the account.
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