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Dolphin Travels v/s Amita Ghosh

    First Appeal No. A/770 of 2015

    Decided On, 01 March 2016

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. DEBASIS BHATTACHARYA
    By, PRESIDING MEMBER & THE HONOURABLE MR. JAGANNATH BAG
    By, MEMBER

    For the Appellant:Mr. Barun Prasad Mr. Subrata Mondal Mr. Sovanlal Bera , Advocate For the Respondent:



Judgment Text

Jagannath Bag, Member

The present appeal is directed against the Order, dated 17.06.2015, passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit – II, in CC. No.610/2014, whereby the complaint was allowed on contest with cost .

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

The Complainant agreed to avail a tour package of the OP tour operator for Kashmir with Vaishnodevi scheduled on 08.10.2014 at a cost of Rs.18,740/-. She booked the tour and paid /deposited Rs.3,000/- on 04.09.2014. As there was a devastating flood in the State of Jammu & Kashmir in September, 2014, she was told by the OP that the tour will be cancelled and if the Complainant agreed to change the tour, then they will adjust the advance money with the said tour which the Complainant agreed to. But later, the OP changed their views and told that they would not adjust the advance money or refund the said advance/deposit to the Complainant, although there was such provision in the brochure published by the OP. The tour was not conducted on the scheduled date or on a deferred date and the OP itself cancelled the said tour. In such case, the Complainant was entitled to get refund of her advance/deposit from the OP. She requested the OP several times, but to no effect. A legal notice was sent on 24.11.2014 requesting OP to refund the said amount but there was no result. In the said circumstances, a consumer complaint was filed before the Ld. Forum below with prayer for direction upon OP to pay a sum of Rs.30,000/- as compensation to the Complainant and other relief as would deem fit.

The complaint was contested by the OP who filed written version, wherein it was contended, inter alia, that the Complainant had no locus standi to initiate the proceeding. It was also contended that the tour had not been cancelled, rather such tour was completed successfully. The complainant of her own volition did not join the tour programme, nor did she cancel the booking in accordance with terms and conditions as mentioned in the brochure. It was further stated that the sum of Rs.3,000/- as booking advance was paid vide Receipt No. 1523 on 23.06.2014 and not on 04.06.2014. As per terms and conditions of the booking, the Complainant was required to pay 50% of the package value 40 days before the date of journey. A bill dated 04.09.2014 was raised which the Complainant annexed with the petition of complaint stating that the said bill was a Money Receipt. As the Complainant did not deposit the balance amount, the OP had to suffer a lot as Rail Tickets had been booked both for UP and Down journeys in her name vide PNR Nos. 6132669564 and PNR No. 2361479370. It was also contended that upon receipt of the notice of the Ld. Advocate of the Complainant a reply was sent on 11th December, 2014, but she has not mentioned the reply given by the OP. There was no deficiency in service and as such complainant is not entitled to get any relief. The complaint was liable to be set aside.

Ld. Forum below having considered the complaint, the written version and materials on record and also after hearing the Complainant and Ld. Layer of the OP observed that the complainant booked one seat for the journey just 34 days prior to the date of journey but OP tried to convince that as per booking terms minimum 50% amount should be deposited within 40 days before the departure. It has also been observed that the terms and conditions were noted on the back of the receipt which did not bear any signature of the Complainant. Ld. Forum below further observed that the Complainant had no fault as a social human being as she was unable to avail the journey in such a situation as was very painful because of the devastating flood. The complaint was allowed with a cost of Rs.3,000/- with direction upon the OP to refund the entire amount of Rs. 3,000/ and also compensation of Rs.3000/-, in default whereof a penal damage @ Rs.200/- ,shall be assessed till full satisfaction of the decree and the said amount shall be deposited to the Forum.

Being aggrieved by and dissatisfied with the order of the Ld. Forum below, the OP – turned – Appellant has come up before this Commission with a prayer for direction to set aside the impugned order.

Ld. Advocate appearing for Appellant submitted that the tour was scheduled on and from 08.10.2014 , though there was flood in the State of Jammu & Kashmir. It is not correct at all, as alleged by the Respondent/Complainant, that the tour was cancelled because of natural calamity. There were several persons who opted out of the tour and were duly paid after deduction of such amounts as were admissible as per terms and conditions of the tour package. Ld. Forum below failed to appreciate that the Respondent / Complainant did not pay the due amounts as per terms and conditions of the tour package. The Respondent/Complainant booked her tour on 23.06.2014 with payment of advance of Rs.3,000/- and accordingly she was supposed to make minimum 50% of the tour cost 40 days before the date of journey and the entire balance was required to be paid 20 days prior to the date of journey. The Respondent/Complainant neither attended the tour nor cancelled the booking for reasons best known to her. In fact, there was a huge loss on account of non-payment of the tour cost by the Respondent/Complainant and as per terms and conditions of the tour package she was not at all entitled to get refund of her advance. The impugned order is arbitrary in nature and liable to be set aside.

The Respondent/Complainant appearing in person submitted that she was assured that her deposit of Rs. 3,000/- would be refunded as the tour programme could not be conducted on the scheduled date. In spite of their assurance, they failed to fulfill their assurance and harassed her. Ld. Forum below passed the order keeping in view all material facts and the same deserves to be upheld.

Decision with reasons

We have gone through the materials on record including the petition of complaint and the written version filed before the Ld. Forum below. The citation of the judgment of the Hon’ble Supreme Court of India as reported in II(1996) CPJ 25 (SC) as filed by the Ld. Advocate of the Appellant has also been perused.

The fact goes that the Respondent/Complainant booked the tour on 23.06.2014 and paid Rs.3,000/- as advance vide Receipt No. 1523 dated 23.06.2014 issued by the Appellant. She was issued a bill dated 04.09.2014. Ld. Forum below, however, noted that the tour was booked on 04.09.2014 which is not correct.

It is also a fact that in their legal notice it was clearly noted that the Respondent/Complainant willingly opted out of the tour wherefrom it is evident that the Respondent/Complainant did not approach the Ld. Forum below with clean hands.

Ld. Forum below made no comment as to cancellation of tour by the Appellant/Respondent

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which goes to establish that there was no deficiency in service on the part of the Appellant/OP. It is also evident from the statement made by the Respondent/Complainant on 23.06.2014 that she had gone through the terms, conditions and cancellation rules of Dolphin Travels and as such Ld. Forum’s observation that the Complainant was not aware of the terms and conditions is not correct. Going by the above discussion, we are inclined to hold that the impugned order suffers from material irregularity and legal infirmity. As a result, the appeal succeeds. Hence, Ordered That the appeal be and the same is allowed on contest. The impugned order is set aside. The complaint stands dismissed. There shall be no order as to cost.
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