IN THE CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 30th day of November 2022
Filed on: 05/10/2017
PRESENT:
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia T.N. Member
C.C.No.401/2017
Complainant :
Mariamma Hergemoller, W/o.Hergemoller, Skyline Monte Carlo, Muttambalam P.O., Kanjukuzhy, Kottayam, Pin-686 004
(By Adv.C.S.Manu, E-attorneys, T-7, III Floor, Empire Building, Old Railway Station Road, Ernakulam, Pin-682 018)
Vs.
Opposite parties:
1) Green Channel Holidays (India) Private Limited, Panampilly Nagar P.O, Ernakulam District, Pin-682 036 rep. by its Managing Director, Mr.Anil Jose.
2) Mr. Anil Jose, Managing Director, Green Channel Holidays (India) Private Limited, Panampilly Nagar P.O, Ernakulam District, Pin-682 036
(Op 1 and 2 Rep. by Adv. P.A Martin Roy, Banerji Road, Amulia Street, Ernakulam, Kochi-18)
FINAL O R D E R
Sreevidhia T.N., Member
1) A brief fact of this complaint is as stated below:
The complainant is an Overseas citizen of India having German citizenship. The 1st opposite party is a private limited company engaged in business of travel agency and foreign tour operation. The 2nd opposite party is its Managing Director. The opposite parties widely published their overseas tour programme for China and Japan during Onam vacation in the year 2017. On seeing an advertisement in Malayala Manorama daily, the complainant contacted the opposite parties over the telephone by the end of April 2017. On making such enquiries, the 2nd opposite party along with its staff Ms.Athira came to the complainant’s house on 01.05.2017 and furnished the brochure of the tour programme. On 01.05.2017, the complainant and her friend Sangeetha Jain who is also an overseas citizen of India having German citizenship, decided to join the tour and paid a consideration of Rs.50000/- as advance for both of them.
The total cost of the tour programme for one person would come to Rs.1,42,000/- Rupees One lakh Forty Two thousand only). The complainant paid the balance amount of Rs.1,17,000/- to the opposite parties on 28.07.2017 by transfer of money to the account of 1st opposite party. In the meeting held on 01.08.2017, the opposite parties obtained the original passport from the complainant and others for the purpose of the visa. The complainant submitted a copy of the certificate of registration as Overseas Citizen Of India (OCI) as requested by the opposite parties on 24.08.2017 by watsap. The opposite parties promsised that visa would be arranged well in advance of the tour schedule. Though the tour schedule was noticed from 31.08.2017 to 09.09.2017, the tour schedule was noticed from 31.08.2017 to 09.09.2017, the tour schedule was changed and as per the modified schedule, the tour was from 01.09.2017 to 10.09.2017. The change of schedule was informed to the complainant just two days prior to the original schedule when Sangeetha called up the opposite parties and enquired about the tour.
The opposite parties asked the complainant to reach Cochin International Airport by 7.30 pm on 01.09.2017. On 01.09.2017 at 11.17 am the 2nd opposite party contacted the complainant over phone and informed her that the visa could not be arranged so far. He requested the complainant to contact Chinese Embassy at New Delhi in person . The complainant and her friend Sangeetha went to the Chineese Embassy in New Delhi on 04.09.2017. They were told by the Chineese Embassy that they should approach the visa collection agency at New Delhi. But the original passport and visa application were returned by the visa collection officer of the Chinese Embassy to the complainant on 04.09.2017 at 6.30 pm on her application. No interview is held by the Chinese Embassy to issue of visit visa. There is no procedure for holiday interview of the applicant by the Embassy concerned. The opposite parties unnecessarily requested the complainant to go to Chinese Embassy at New Delhi in person and the complainant was made to incur expenses unnecessarily for travelling to New Delhi.
The opposite parties did not arrange the visa for the complainant. This fact was not informed to the complainant in advance. The complainant was under the impression that the opposite parties have arranged visa and she was in a position to join the tour programme on 01.09.2017 as per the schedule. It is only due to the carelessness and negligence on the part of opposite parties that visa could not be arranged in time. Hence the complainant could not join the tour programme on 01.09.2017 for China and Japan. The negligence and the failure on the part of the opposite parties to arrange visa amounts to deficiency in service. The complainant had submitted the original passport and the relevant details to the opposite parties in time. When the complainant approached the opposite parties for return of the amount Rs.1,42,000/- the opposite parties have not returned the amount. The above act on the part of the opposite parties amount to deficiency of service. The complainant had to incur expenditure to travel to New Delhi for obtaining visa from the Chinese Embassy. Hence the complainant approached this Commission to pass an order directing the opposite parties to return an amounts of Rs.1,42,000/- ie., the total cost of tour programme to the complainant. The complainant also seeks compensation of Rs.50,000/- from the opposite parties for the mental agony suffered due to the deficiency in service suffered by the complainant along with the cost of proceedings to the complainant.
2) Notice
Notice was issued to the opposite parties from this Commission on 30.11.2017. Upon notice the opposite parties 1 and 2 appeared and filed their version jointly.
3) Version of the opposite parties.
In their version the opposite parties stated that the complainant and the opposite parties have no relationship for attracting the Consumer Protection Act. If any dispute arises in the transactions between the complainant and the opposite parties it will come only under the jurisdiction of the Civil Court. The claim of the complainant that the act on the part of the opposite parties amounts to deficiency of service and the opposite parties are liable to return Rs.1,42,000/- and to pay compensation to the complainant is not correct and hence denied. At the time of enquiry made by the complainant itself it was informed her that the tour programme should be subject to the granting of visa and if the visa application is rejected by the concerned embassy the visa fees and other expenses such as hotel booking advance, ticket advance is not refundable. At the time of first discussion itself the office staff of the opposite party narrated all these things and handed over the printed terms and conditions and the complainant and her friend who is the complainant in C.C.400/2017 understood and handed over to the opposite parties. The opposite party booked Food, hotel and accommodation and other facility for the complainant. The opposite party reserved tickets for the Royal Caribbean Cruises. On 16.08.2017 itself the tickets were booked for the passengers including the complainant. The confirmation form for the boarding of the tour members started from 02.09.2017. Due to the non sanctioning of visa the opposite party herself made a suggestion before the opposite party to make arrangements for her personal visit to the Chinese Embassy and as the maximum accommodation these opposite parties provided up and down Flight Tickets to the complainant to New Delhi. Due to the over enthusiasm the complainant demanded to return the original passport and visa application and collected the same form the Chinese Embassy. In fact, the complainant is duty bound to pay the above flight charge to these opposite parties. Due to the above reasons the complainant withdraw herself from the tour programme and the opposite party is not liable to pay the amount claimed in the complaint. There is no deficiency of service on the part of the opposite parties.
4) Evidence
Evidence in this case consists of the documentary evidences filed by the complainant which are marked as Exbt.A1 to A4. Complainant filed proof affidavit. The complainant is cross examined by the counsel of the opposite parties 1 and 2 and his depositions are recorded as ‘PW1’.
Opposite parties have no oral evidence. The opposite party filed one document which is marked as Exbt.B1.
5) Issues to be considered in this case are as follows:
(1) Whether any deficiency of service or unfair trade practice is proved from the side of the opposite parties towards the complainant?
(2) If so, reliefs and costs?
6) For the sake of convenience, we considered issue Nos. (1) and (2) together.
The specific case of the complainant is that the opposite parties engaged in the business of travel agency and foreign tour operation having its office at Panampilly Nagar, Ernakulam did not care to inform that the complainant has not got the visa for the proposed tour from 31.08.2017 to 09.09.017 but failed to do so. The change in schedule was informed only to the complainant two days prior to the original schedule. Exbt.A1 produced by the complainant is a brochure of the tour programme. As per the brochure the tour programme is scheduled to commence on 31.08.2017 to 09.09.2017. Exbt.A2 is a receipt produced by the complainant which reveals that the opposite party received an amount of Rs.50,000/- from one Sangeetha Jain on 01.05.2017 through cheque. Exbt.A3 is the visa application form of the People’s Republic of China submitted by the complainant. Exbt.A4 is an account statement of the complainant’s Savings Bank account which is maintained at South Indian Bank Ltd. Kanjikuzhi Junction, Muttambalam P.O., Kanjikuzhi Kottayam. As per the account statement, on 28.07.2017 an amount of Rs.1,17,000/- was transferred to the opposite parties from the complainant’s account. Exbt.B1 produced by the opposite party is a tour booking form, which contain the terms and conditions of Visa and Passport . As per Exbt. B1, the complainant had booked the tour package. The terms and conditions are as follows:
VISA & PASSPORT : Passengers are required to have passport valid for at least six (06) months. It is your responsibility to verify all visa and passport. Personal Interview at the concern Consulate if required. Candidate has to go for the interview at their own cost. You are responsible for meeting all health and other requirements, and for any documents required by the laws, regulation, order, and / or requirements of the countries you will visit. We are not responsible for providing you with specific visa and we cannot accept liability for any passenger refused entry onto any transport or into any county due to failure of the passenger to carry correct documentation. Visa granting is a sloe discretion of the concern Embassy or Consulate. Visa Fees and other expenses such as Hotel Booking advance, ticket advance are not refundable if visa rejected.
As per the Terms and Conditions of the 1st opposite party visa granting is a sole discretion of the concerned Embassy or Consulate. Visa fees and other expenses such as hotel booking advances and ticket advance are not refundable if the visa is rejected. The terms and conditions are accepted by the complainant by putting the signature. Page 3 of B1 shows that the opposite parties had reserved tickets for the Royal Caribbean Cruises, prepared for the complainant. Day by day itinerary is also produced by the opposite party. The opposite party has also produced the confirmation form for the boarding of the tour members starting from 02.09.2017. As per the account statement on 28.07.2017, an amount of Rs.1,17,000/- was transfer to the opposite party from the complainant’s account for arranging Chinese Visa for the complainant in time for enabling her to join the tour programme as per the tour schedule.
We have analysed the documents filed from both sides, the version filed by the opposite parties and the facts of the case. From the available documents produced by the complainant we observed that no deficiency is proved from the side of the opposite parties towards the complainant as alleged by the complainant. The complainant alleges that “though the tour schedule was notified from 31.08.2017 to 09.09.2017, the tour schedule was changed and as per the modified tour schedule, the tour was from 01.09.2017 to 10.09.2017. The change of schedule was not informed to the complainant just few days prior to the original schedule when Sangeetha called up the opposite parties. The complainant also submits that the opposite parties asked the complainant to reach Cochin International Airport by 7.30 pm on 01.09.2017. Since the visa of the complainant was not ready, the 2nd opposite party requested the complainant to go to New Delhi at 7.05 pm in the evening on 01.09.2017”.
“The complainant visited the Chinese Embassy in New Delhi on 04.09.2017 and no interview was held by the Chinese Embassy to issue of visit visa”. The complainant alleges that the opposite parties unnecessarily requested the complainant to go to the Chinese Embassy in New Delhi in person and the complainant was made to incur expenses unnecessarily for travelling to New Delhi. But the complainant has not produced any evidence to prove these allegations.
The case of the complainant is unbelievable since the complainant has not produced authentic evidence to prove that she could not join the tour programme due to the fault or deficiency in service of the opposite parties. The terms and conditions of the tour programme clearly prove that ‘it is your responsibility to verify all visa and passport. Personal interview at the concern consulate if required’. From the available documents produced by the complainant, we are of the opinion that the complainant is liable to be dismissed and accordingly dismissed.
Pronounced in the open Commission this the 30th day of November 2022.
Sd/-
Sreevidhia T.N.,, Member
Sd/-
D.B.Binu,President
Sd/-
V.Ramachandran, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s evidence
Exbt.A1 :: copy of brochure of the tour programme
Exbt.A2 :: copy of receipt dated 01.05.2017 which shows that the complainant paid an amount of Rs.50,000/- towards tour programme.
Exbt.A3 :: copy of Visa application form
Exbt.A4 :; copy of statement of account for the period from 01.01.2017 to 01.08.2017 of the complainant.
Opposite parties evidence ::
Exbt. B1 :: copy of tour booking form from the opposite party.
Depositions
PW1 :: Mariamma Hergemoller
C.C.No.401/2017
order dated 30.11.2022
