M/s A.M. Travels vs Jayant Ahuja & Anr

Karuna Nand Bajpayee, Presiding Member

This revision petition has been filed under Section 58 (1) (b) of the Act 2019 in challenge to the Order dated 09.03.2023  in Appeal No. A/116/2022 of the State Commission UT Chandigarh arising out of Order dated 09.05.2022 of the District Commission in Complaint no. 369 of 2018.

Heard the learned counsel appearing for the petitioner and have perused the record including inter alia the Order dated 09.05.2022 of the District Commission, the Order dated 09.03.2023 of the State Commission and the petition.

The appeal has been filed with self-admitted delay of 12 days.

Considering the reasons mentioned in the application for condonation of delay, as also in order to decide the matter on merit rather than to dismiss it on the threshold of limitation, the delay is condoned.

It appears that the complaint in question was filed before the District Commission with the prayer to get back the amount of Rs. 3,86,980/- which is said to have been paid to opposite party along with the compensation for inflicting mental agony and harassment which ensued as a result of delay in making the bookings and also which was caused because of denial and delay in refunding the said amount despite undertaking to that effect.

The District Commission after adopting the proper procedure and after giving full adequate opportunity to both the sides partly allowed the complaint to the following effect:-

In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OP is directed as under

i) to refund the amount of 2,50,000/- to the complainant alongwith interest @9% per annum w.e.f. 13.1.2018 till realization.

ii) to pay an amount. of *25,000/- to the complainants as compensation for causing mental agony and harassment to them.

iii) to pay 10,000/- to the complainants as costs of litigation.

This order be complied with by the OP within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No. (i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr. No. (iii) above.

Aggrieved by the aforesaid award the appeal was filed in State Commission by the petitioner / opposite party. The State Commission thoroughly examined all the facts once again and considered all the contentions that were raised on behalf of the petitioner / appellant. In fact it transpires from the perusal of impugned Order that thought the complainant’s counsel initially appeared through video conferencing but subsequently none appeared on complainant’s behalf and as such the State Commission decided to proceed ex-parte. Only the counsel for the petitioner/ appellant was heard by the State Commission. The perusal of the impugned Order shows that each and every factual aspect of case has been meticulously gone into and the submissions that were raised on behalf of petitioner / appellant were critically weighed and analysed. It appears that the petitioner / appellant could not succeed to assail the findings arrived at by the District Commission and as a result of which the order passed by the District Commission was affirmed.

The facts of the case have been succinctly captured by the State Commission in para no. 2 and in order to make the facts explicit the relevant portion from the same may extracted which reads as follows:

…it was the case of the Respondents/ Complainants that they approached the Appellant/OP for booking tour package to Dubai from 21.12.2017 to 25.12.2017 of 7 adults and 2 children. The Respondent/complainants vide email dated 26.10.2017 asked the Appellant/OP to make necessary bookings, but, the Appellant/OP failed to do the same and complete visa requirements. Thereafter, the Appellant/OP vide email proposed the Respondents/complainants to change their trip dates and the Respondents /complainants confirmed the same vide commuinication dated 23.12.2017. However, the Appellant/OP again failed to finish visa formalities, hotel bookings or the air ticket. The Respondents/complainants with a view to give more time to the Appellant/OP, agreed to book their trip from 24.01.2018 to 28.01.2018. Subsequently, Appellant/OP vide email dated 10.01.2018 sent hotel bookings in Dubai which were false/fake. Further, the Appellant/OP vide email dated 11.01.2018 informed the Respondents/ complainants that visa of all the travellers was expected by 13.01.2018, failing which the amount would be refunded. However, the Appellant/OP failed to do so and in response to the discussions held on 15.01.2018 Appellant/OP undertook to refund the whole amount of 3,85,980/-. Despite the understanding between both the parties, Appellant/OP could get the visa of Respondent/ complainant No.1 only on 15.01.2018. The Appellant/ OP vide email dated 20.01.2018 informed that the refund was under process, but nothing was received by the Respondents/complainants.

It further transpires that after considering all the contentions raised on behalf of the petitioner / appellant the State Commission recorded finding against the petitioner as follows:

All this leads to an irresistible conclusion that that the Appellant/OP was surely and definitely guilty of deficiency in service and unfair trade practice, in as much as, in the first instance, it failed to render proper services to the Complainants, despite having charged the amount for the same in advance and thereafter, failed to honour its own commitment made to the Complainants vide Annexure C-4. Thus, the plea raised by the Learned Counsel for the Appellant/OP that there remained a novation of contract between the parties, is not available to the Appellant/OP in the facts & circumstances of the case and the same is, thus, declined. No case is therefore made for any interference in the findings recorded ibid by the Ld. Lower Commission.

Learned counsel appearing on behalf of petitioner has once again tried to re-open all the factual aspects of the case and reiterated the submissions which were raised in the fora below but did not find favour. It was contended by learned counsel that the fault lied on the part of the complainant as the modification of programme and the date of the trip was tweaked from the side of the complainant and the petitioner is not to blame for that.  It was also submitted that whatever happened was beyond the power and control of petitioner.  The conduct on the part of petitioner was throughout bona fide.  Learned counsel was repeatedly requested not to delve upon the facts of the case and pleadings all over again and to demonstrate, if he could, whether there is any jurisdictional error in the impugned Order.  Learned counsel has simply not been able to point out as to how any of the fora below has failed to exercise its jurisdiction or as to how has they exceeded the same.  Learned counsel has simply failed to point out any element of perversity which may go to vitiate the findings recorded by the two Commissions below. That a substantial amount of money was given on behalf of the complainant and received by the petitioner is beyond the pale of controversy.  The fact that the complainant was not given back the due amount is also not in dispute. In fact the approach adopted by the District Commission which has been affirmed by the State Commission whereby it refused to refund Rs.1,35,980/- appears to be a balanced approach and cannot be faulted with.  Even the rate of interest cannot be castigated for being exorbitant or disproportionate.  Though on the insistence of the learned counsel the Bench has gone through the entire record as has been made available before it and has perused the twin Orders passed by the District Commission as well as by the State Commission and also the pleadings that were put forth but the Bench does not find any such material irregularity or perversity of approach which may persuade it to re-appreciate the evidence differently and make a fresh disagreeing appraisal of the same again.  Certainly no jurisdictional error in the impugned Order is perceptible.  The perusal of the record also shows that the prayer made by the complainant has not been blindly accepted without proper judicial application of mind.  The complaint has been allowed partially after giving cogent reasons.  The relief sought by the complainant has been chiselled and extenuated and after making a reasonable modification the award has been firmed up.

This Bench fails to see any perversity in the Orders of the two fora below as may go to vitiate their findings. Nor does the Bench find any jurisdictional error or material irregularity as may occasion to call for interference in the impugned Order by way of exercise of the revisional jurisdiction of this Commission. (Refer: Order dated 08.09.2022 of Hon’ble Supreme Court in Civil Appeal No. 5928 of 2022 Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. & Anr.).

In view of the facts as discussed above the bench does not see any good reason to take a different view of the matter then what has been adopted by fora below.

The petition being sans merits stands dismissed

The Registry is requested to send a copy each of this Order to all parties in the petition and to the learned counsel for the petitioner. The stenographer is requested to upload this Order on the website of this Commission immediately.