GURUNATH TRAVELS vs A.P. PALIWAL

- THIS is a revision petition filed by M/s. Gurunath Travels, who were Opposite Parties in the complaint, against the order dated 10th March, 1993 of the State Commission of Uttar Pradesh at Lucknow passed in Appeal No. 1391/SC/92 by which the appeal filed by the present revision petitioner was dismissed. The original complaint was filed by the present respondent Dr. A.P. Paliwal before the District Consumer Redressal Forum, Aligarh. Hereinafter the parties to the present petition will be referred to by their original nomenclature in the complaint. The facts as appear from the record are that the Opposite Party is carrying on business of conducting travel tours. The son and daughter-in- law of the complainant planned a mini tour through the South with effect from December 7, 1991. As the said tour commencing on December 7th, 1994 was full, the travel agency informed the Complainant that two seats could be available for the tour commencing from 22nd December, 1991. The Complainant agreed to that proposal. The travel agency issued a receipt for Rs. 7,000/-which had been sent earlier, in the name of the Complainant for the tour commencing from 22nd December, 1991. However, the son of the complainant fell ill. On 13th December, 1991 the travel agency was informed by the Complainant on phone and by telegram on 14th December, 1991 and by letter of the same date to cancel the booking for the tour and asked for the refund of Rs. 7,000/-. By telegram dated 14th December, 1991 the travel agency informed the Complainant that the refund of the cancellation is not admissible as per clause in the pamphlet though substitutes for two seats are admissible. Some correspondence took place between the parties but the travel agency refused to refund the amount. Thereupon the Complainant filed a complaint claiming refund of Rs. 7,000/- with interest at the rate of 18% alleging that it was height of injustice and high handedness on the part of the travel agency to refuse to refund when notice for cancellation of the booking was given to the agency 10 days in advance. It was also stated that the pamphlet was never sent to him.

THE Complainant was contested by the Opposite Party by filing a counter. It was alleged that the booking was made by Dr. B.K. Paliwal, Tohalkaranji, after obtaining the information from the Kolhapur representative of the agency vide letter dated 30th October, 1991 and not by the Complainant. THE Complainant had received the literature/pamphlet of tour from its Kolhapur representative and is well aware of the rules and regulations. From the letter dated 14th December, 1991 it is clear that the son of the Complainant was sick since 10th November, 1991 and if at that time they were informed, some other person could have been arranged in place of the complainant. However, the Complainant informed about the cancellation of the booking only on 14th December, 1991 when only 7 days were left for the tour. In such a short time alternative arrangement could not be made and it was difficult to get any more passengers as the advertisement had been closed. An amount of Rs. 200/- which was sent for booking of seats in train from Poona to Agra could be refunded. It may be mentioned here that the cost of the tour per seat was Rs. 3,400/- and Rs. 200/- extra was sent to the travel agency for booking the seats for the son and daughter- in-law of the complainant from Poona to Agra. It appears that the Opposite Party had sent its counter to the District Forum by post but nobody appeared before it on their behalf. The District Forum held that the action of the Opposite Party is not refunding the booking charges was illegal and unfair trade practice as the Opposite Party had received intimation of cancellation of the booking much prior to the commencement of the tour and there was sufficient time to fill the vacancies. Accordingly it ordered for refund of Rs. 7,000/- to the complainant.

Feeling aggrieved of that order, the Opposite Party filed an appeal before the State Commission but the same was dismissed.

THE facts of the case are not much in dispute. Dr. A.P. Paliwal had booked two seats one for his son and the other one for the latter''s wife for the mini South India tour which was to be operated by the petitioner''s Agency Gurunath Travels. Unfortunately the son of Dr. Paliwal fell seriously ill and the latter phoned the petitioner on 13th December, 1991 and also despathced to telegram and letter on 14th December, 1991 for the cancellation of the tour of his son and the latter''s wife. As noticed earlier the tour was to commence from 22nd December, 1991. THE travel agency refused to fefund the booking charges and for this they relied opon a term contained in he pamphlet and the receipt issued for the advance. The learned Counsel for the petitioner argued that on the receipt issued to the Respondent about Rs. 7,000/-, it has been specifically mentioned that "subject to Poona jurisdiction only". He, therefore, argued that the District Forum at Aligarh had no jurisdiction to decide the complaint. The petitioner did not appear before the District Forum and only sent a counter by post. Of course in the counter it was stated that on the letter heads it is indicated that all disputes are subject to Poona jurisdiction only and is printed on receipt and pamphlet also. Many letters written by the Petitioner are on the file but in none of those letter it is mentioned that the disputes are subject to Poona jurisdiction only. It is the case of the Respondent-Complainant that he has not received the pamphlet. On the receipt issued by the petitioner of course there is mention about Poona jurisdiction only. However, as petitioner herein did not appear before the District Forum it will be deemed that the said objection about jurisdiction of the District Forum was not pressed. Before the State Commission also exclusion of the jurisdiction of the District Forum was not pressed. Therefore, it is now too late to say that the District Forum at Aligarh had no jurisdiction to entertain the claim of the Complainant.

THE learned Counsel for the petitioner further argued that on the receipt it is specifically mentioned that the amount was not refundable. We are of the opinion that the said clause is very oppressive to a consumer. THE Respondent-complainant had informed the Travelling Agency about 9 days in advance for the cancellation of the tour. Even if for arguments sake it is held that the petitioner was not able to fill up two seats which were cancelled by the Complainant''s son and the latter''s wife, at least the reservations in the hotel etc. could have been got cancelled, as there was sufficient time for that matter. THE petitioner should not be allowed to charge for the services which could have been cancelled. We have considered the matter carefully and are of the opinion that in the interest of justice the complainant is entitled to refund of only one-half of the amount deposited. The petitioner can retain the remaining half as he may not have been able to fill up the two seats, as is their case. Accordingly we accept the present Revision Petition and modify the impugned order of the District Forum and confirmed by the State Commission to the extent that the Complainant is entitled only to the refund of Rs. 3,500/-. The Complainant is not entitled to any further amount. Here we may mention that vide order dated 5th August, 1993 the petitioner was granted ad interim stay of the enforcement of the order of the State Commission on condition that they deposit before the District Forum Aligarh a sum of Rs. 3,500/- for payment to the Complainant towards the amount due to him under the impugned order. If this amount has been paid by the Petitioner to the Respondent-complainant, the Respondent-complainant is not entitled to recover anything further. If the amount has not been paid the Respondent-Complainant will be entitle to recover the said sum of Rs. 3,500/- by taking suitable proceedings under the Consumer Protection Act against the petitioner. No costs.

Y. Krishan, Member - The facts of the case have been set out in the above order of Justice B.S.Yadav and therefore, do not require to be repeated. In the pamphlet issued by the petitioner regarding their tours, it had been stated that no refund of the travel tour charges paid in advance shall be granted in case the traveller cancels his booking. This was repeated in the receipt issued by the travel agency for Rs. 7,000/- paid as advance by the respondent on behalf of his son and daughter- in-law for the conducted tour. It may be that such a clause regarding non-refund of such an advance after cancellation of the tour is oppressive to the consumer but in my opinion it is not within the jurisdiction of the Consumer Forums to decide whether terms of a contract or an agreement are oppressive and unfair. The travel agency in this case was to render service after the agreement had come into existence and would be liable under the Consumer Protection Act for any deficiency in service which he was required to render or he rendered under the contract. If the contract itself is oppressive this would not amount to deficiency in service. In such a case the complainant has to seek redress for loss or damage arising from an oppressive contract from a Civil Court.

IN the light of above this complaint was not maintainable before the Consumer Forums and as such the orders of the District Forum and the State Commission are set aside having been passed without jurisdiction. There is no order as to costs. Order accordingly.