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2025 Supreme(Online)(SCDRC) 33278
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Kalyani Kapse, Presiding Member, Shaila D. Wandhare, Member
Kesari Tours Pvt. Ltd. – Appellant
Versus
Ajabrao Deorao Khapekar – Respondent
FIRST APPEAL NO. SC/CB2/27/A/26/2023
For the Appellants/Petitioners: Priyanka Thakre
For the Respondents: Sawal
When a tour is cancelled by an operator due to force majeure, the contract is frustrated, and the operator is legally obligated to provide a full refund of the tour costs rather than forcing the consumer to accept credit shells or future travel options.
Headnote:(A) Consumer Protection Act, 2019 - Cancellation of tour due to COVID-19 pandemic - Refund of tour amount - Respondents booked an international tour but the Appellant unilaterally cancelled the trip citing force majeure - Appellant offered a 'Credit Shell' instead of a full cash refund, which was rejected by the consumers - Appellant challenged the lower commission's order demanding a refund with interest, citing tour terms and conditions holding consumers bound by force majeure clauses. (Paras 1, 5, 6, 14, 15, 26)
(B) Force Majeure vs. Frustration of Contract - The court held that where a tour is cancelled by the operator due to unforeseen circumstances like a pandemic, the contract is frustrated, and the operator is obligated to refund the deposited amount. Consumer protection authorities and apex court orders mandate refund in such instances rather than forcing credit notes on consumers. (Paras 29, 31, 33)
Facts of the case:
The Respondents booked an international tour package with the Appellants, paying a substantial amount in advance. Due to the COVID-19 pandemic, the tour was cancelled by the Appellants. The Appellants refused a full refund, instead offering 'Credit Shell' notes or partial refunds with deductions. The trial commission ordered a partial refund with interest, which both parties challenged.
Findings of Court:
The court upheld the trial commission's directive for the refund of the principal amount deposited by the consumers, finding that the Appellants' reliance on 'Credit Shell' policies was illegal and contrary to directives issued by apex authorities in similar scenarios. The court dismissed both the appeal and the cross-objections.
Issues: Whether the tour operator is entitled to forfeit amounts or force credit notes upon consumers upon cancellation of tours due to COVID-19 pandemic-related restrictions.
Ratio Decidendi: Where a contract is frustrated due to unforeseen events (force majeure), the service provider cannot compel the consumer to accept future travel credits; they are legally bound to refund the consideration received towards the services not availed.
Result: Appeal and cross-objection dismissed.
| Table of Content |
|---|
| 1. parties' contentions and background regarding tour cancellation and refund dispute. (Para 1 , 5 , 6 , 7 , 12 , 13 , 14 , 15 , 16) |
| 2. force majeure applicability and obligation to refund despite credit shell policies. (Para 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34) |
| 3. evaluation of cross-objections and final order dismissing both appeal and cross-objection. (Para 35 , 36 , 37 , 38 , 39) |
ORDER
PER MRS.KALYANI KAPSE, PRESIDING MEMBER
1. Being aggrieved by the order dated 21/10/2022 passed by the Learned District Consumer Dispute Redressal Commission, Nagpur in Complaint Case No. CC/243/2021. By the instant appeal the appellant namely M/s Kesari Tours Pvt. Ltd. against Shri Ajabrao Khapekar challenging the Judgment whereby the Complaint of the Original Complainant/ Respondent was partly allowed.
2. Short facts leading to the filling of the Appeal is as follows-(Parties to the Appeal are hereinafter referred as per their original nomenclature for better appreciation.)
3. In nutshell it is a case of the Complainant that the Opposite Party No.1 above named is private limited Company engaged in the business of conducting Domestic and International Tours worldwide. OP. No.2 is Agent of OP. No.1 at Nagpur.
4. The Complainant is a permanent resident of above address and The Opposite parties are the tourist companies/agencies conducting tours within the country and out of the country. The Opposite Party No. 1, namely Kesari Tours Pvt. Ltd. is the renowned tour conducting company and Party No. 2 is franchisee of Party No.1, at Nagpur.
5. That, in the month of October 2019, the Complainant booked for Europe tour (Tour Code No. P72004NO/20) of London, Paris, Rome, Italy and Other countries on 26/04/2020 to 07/05/2020) and paid the tour charges of Rs. 4,05,000/-(Four Lacs Five Thousand Only) through the Opposite Party No.2. The tour charges were including all the tour expenses and VISA charges. The payment was made by the cheque No. 766527 dated 23/09/2019 of Syndicate Bank, Manish Nagar, Nagpur and the cheque in the name of Party No.1. This tour cost of Rs. 4,05,000/- was for two persons, the Complainant and his wife. Tour was to be started from 26/04/2020, however, total tour cost of Rs. 4,05,000/- was paid on 23/09/2019 by the Complainant and the Opposite Party No.1 received the same. The copy of receipt of payment is annexed herewith as Annexure No.1 to the complaint.
6. However due to COVID-19 pandemic the opposite party cancelled the said tour and intimated to the Complainant through message on 19/03/2020. The opposite parties intimated to the complainant on 14/07/2020 that OP are making refund of money and requested to wait for his turn. But complainant received a mail dated 03/09/2020 with a proposal of Credit Shell with terms and conditions decided by the opposite parties without consent of the Complainants.Complainants rejected proposal of tour company.
7. Complainant prayed to direct the opposite parties to refund the amount of Rs.4,05,000/ paid by the complainant as a tour cost along with the interest @24% p.a. calculated up to the date of actual refund of the amount by the opposite parties. Rs 6,13,900/- till 05/04/2021 and the interest on this amount till the actual refund of amount.
8. The opposite parties to pay the compensation of Rs.1,00,000/- each complainant against the mental torture, physical; trouble and harassment caused to the complainant due to the non-payment of amount by the opposite parties. and direct the opposite parties to pay Rs.25,000/- as the expenses of the Court case.
9. Notices were issued to the opposite parties No. 1 and 2 and they filed their Written Version (Written statement) on record on 12/04/2021. Specifically denied all the allegations levelled against them.
10. The opposite party No.1 appraised its credit shell policy to the customers/tour participants. Foreign vendor/s etc. such as airline, hotel, Foreign tour operators pleaded its inability to refund the advance amounts passed on
