COX AND KINGS LTD vs SHIV RAJ SINGH PANWAR & ANR

The petitioner company came out with a scheme known as Cash Back Holiday Offer. In terms of the said scheme, a cash back holiday voucher was given by the petitioner company to the persons booking tour with them between 16.01.2007 to 21.01.2007. In order to receive the cash back holiday voucher, the customer was required to pay the full cost of the tour, within twenty days from the date of the booking and this was a mandatory condition of the offer. The holiday voucher was to be delivered to the customer on making full and final payment. It was also stipulated in the Scheme that the time limit for making payment shall be strictly enforced and if the balance payment was received after due date, it would result in the cancellation of the offer and the customer would be automatically charged the regular Brochure Price and he will not be eligible for the holiday cash back offer.

The complainant booked a tour with the petitioner company through its agent M/s. Comfort Travels & Tour on 25.01.2007. He did not make the entire payment within twenty days of the booking. The petitioner company sent a letter dated 28.02.2007 to him drawing his attention to the default in his part and granting time till 02.03.2007 to make the balance payment. It was also made clear in the said letter that in case of default in payment of the balance payment by the stipulated date, he will not be entitled to the cash back offer. He was also given an option to cancel the tour subject to payment of nominal cancellation charges.

The case of the complainant is that he contacted the agent M/s. Comfort Travels & Tour for accepting the balance payment, but the said agent declined to accept the same. Two letters, one dated 02.03.2007 and the other dated 07.03.2007 were allegedly sent by the complainant to the agent, one addressed to the Udaipur office and the other addressed to its Jaipur office. The complainant went on the tour booked by him but since the Holiday Voucher was not given to him, he approached the concerned District Forum by way of a complaint.

The agent M/s. Comfort Travels & Tour did not appear before the District Forum to contest the claim and therefore, it was proceeded ex-parte by the concerned District Forum. The petitioner however, contested the complaint on the ground that since the complainant had not deposited the entire tour cost within twenty days of booking, he was not entitled to the holiday cash back offer.

The District Forum vide its order dated 28.06.2010, dismissed the complaint. Being aggrieved from the order passed by the District Forum, the complainant approached the concerned State Commission by way of an appeal. Vide impugned order dated 18.08.2015, the State Commission allowed the appeal. Being aggrieved, the petitioner company is before this Commission by way of this revision petition.

The only question which arises for our consideration in this case is as to whether the complainant had offered balance payment to the agent of the petitioner company in respect of the letter dated 28.02.2007 or not. In case the payment was tendered, but was refused by the agent of the petitioner company, the complainant could not be said to be responsible for making late payment.

As noted earlier, the opposite party no. 1 did not come forward to contest the claim. As a result, the case of the complainant that he had offered the balance payment to the agent which refused to accept the same, needs to be accepted. It is pointed out by the learned counsel for the petitioner company that no postal receipt was filed by the complainant to prove the service of the letters dated 02.03.2007 & 07.03.2007 upon the agent of the petitioner company. In my view, the complainant would have been required to produce the said documents only in case opposite party no. 1 had come forward to contest the claim and had denied the receipt of the aforesaid two letters. The opposite party no. 1 having not come forward to contest the claim, the allegation made by the complainant in this regard, which could have been controverted only by opposite party no. 1 and not by the petitioner company, have remained uncontroverted. In any case, the aforesaid letters were duly proved in the affidavit of the complainant filed before the District Forum. Therefore, I have no hesitation in holding that the aforesaid letters dated 02.03.2007 & 07.03.2007 were duly sent by the complainant to the agent of the petitioner company. The reason why the agent did not accept the balance amount offered by the complainant, to my mind, could be that the last date in terms of the scheme for making the payment of the balance amount had already expired on 13.02.2007 and the agent might not be aware of the time extended by the petitioner company vide its letter dated 28.02.2007. In any case, what is material is that the balance amount in terms of the letter of the petitioner company dated 28.02.2007 was offered by the complainant to the agent of the petitioner company who refused to accept the said payment. Therefore, the complainant cannot be held responsible for delayed payment of the balance amount. Consequently, he became entitled to the holiday cash back voucher from the petitioner company which the said company wrongfully denied to him.

For the reasons stated hereinabove, I find no good ground to interfere with the view taken by the State Commission. It is however made clear that the petitioner company can have such remedy as may be open to it in law against its agent.

The revision petition stands dismissed accordingly.