New Delhi District Commission Holds Thomas Cook India Liable For Forfeiture Of Cancelled Tour Amount Based On Uninformed T&C

Brief Facts:

Mr Pawan Kumar Mehta (“Complainant”), along with his deceased wife, booked a tour to South East Asia on the Thomas Cook website, under the "Asian Wonders" holiday package offered on the website. The total cost of the tour was Rs. 1,14,000/- including a 3.09% service charge on the total package. Later, the Complainant met with the company's executives in its office in Delhi where the Complainant filed a booking acknowledgment form. However, before proceeding with further formalities, the executive insisted on an advance payment. Trusting the goodwill and reputation of Thomas Cook in the market, the Complainant paid Rs. 50,000/- towards the booking amount. Thomas Cook assigned a tour code "TCAW 2512" to the Complainant, and the executive assured them that another executive, "Navneet," would contact them for pre-tour formalities such as Visa processing and balance payment.

Shortly before the scheduled departure, the mother of the Complainant fell critically ill, and her condition became severe. Given the circumstances, the Complainant decided to postpone their South East Asia tour. They contacted Thomas Cook's General Manager, who assured the Complainant that they would subsequently cancel the booking for the Complainant. Subsequently, the Assistant Manager informed the Complainant that the tour had been cancelled, and the money would be refunded to the Complainant's account by Thomas Cook's policy.

However, after some time, the Complainants received an email from the Assistant Manager stating that Thomas Cook had forfeited the entire booking amount due to the cancellation being made less than 10 days before the tour's departure. Despite the Complainants' plea for a refund, citing the cancellation reason as the illness of the Complainant's mother, Thomas Cook did not refund any amount. The Complainant was informed that, according to Thomas Cook's T&C, the entire amount paid by him was forfeited, and no refund would be provided.

Feeling aggrieved, the Complainant filed a consumer complaint in the District Consumer Disputes Redressal Commission-VI, New Delhi (“District Commission”).

In response, Thomas Cook argued that the cancellation policy was explained to the Complainant at the time of booking. Further, it argued that since the Complainant cancelled the tour package just 18 days before the scheduled departure, according to the policy, the Complainant is not entitled to any refund. The company argued that its Cancellation Policy, clearly outlined in the booking form, stipulates that cancellation charges amounting to Rs. 1,00,000/- per person would be applicable when cancellations are made between 20 days to 11 days before the departure of the tour.

Observations by the Commission:

Referring to Thomas Cook's argument that the Complainant violated the Cancellation Policy, the District Commission posed a question to Thomas Cook inquiring whether these T&Cs were duly served on the Complainant, and if so, through what mode of service. Additionally, the District Commission sought information on whether the Complainant acknowledged the receipt of the T&C and whether the Complainant understood the conditions laid down by the company. All these questions were answered negatively by Thomas Cook.

Further, the District Commission referred to the decision of the Supreme Court in Modern Insulator Limited Vs. Oriental Insurance Company Limited [(2000) 2 SCC 734] and reinforced the importance of serving T&C to the customers, asserting that if not served, an entity cannot claim the benefits of having such T&C on paper.

Ultimately, the District Commission concluded that Thomas Cook lacked justification to forfeit the advance amount paid by the Complainant. Therefore, the District Commission directed it to refund the advance amount of Rs. 50,000/- to the Complainant at a prescribed interest rate of 9% per annum from the date of receipt until realization. Further, the District Commission directed it to pay a sum of Rs. 25,000 to the Complainant for litigation costs.

Case Title: Pawan Kumar Mehra vs Thomas Cook India Ltd. and others.

Case No.: CC/43/2014

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