THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM
Dated this on 27th Day of October 2022
CC No. 400 /2017
PRESENT:
Shri. D.B Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia T.N Member
COMPLAINANT :
Sangita Jain,aged 70 years, W/o S.K.Jain, Maryland", Malippilla Thoppil House. Sakthikulangara P.O., Kollam District, PIN-691581
(S.K.Premraj, T.B.Sivaprasad, E-attorneys, T-7 III Floor, Empire Building, Old Railway Station Road, Ernakulam, Pin-682 018)
Vs.
OPPOSITE PARTIES :
Green Channel Holidays (India) Private Limited Panampilly Nagar P.O. Ernakulam District, PIN-682036, represented by its Managing Director Mr.Anil Jose.
Mr.Anil Jose, Managing Director
Green channel Holidays (India) Private Limited Panampilly Nagar P.O., Emakulam District, PIN-682036.
(O.p1 and 2 rep. by Adv.P.A.Martin Roy, Banerji Road, Amulia Street, Ernakulam, Kochi-18)
FINAL ORDER
D.B Binu , President
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 of the Consumer Protection Act, 1986. 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 any foreign tour operation. The 2nd opposite party is its Managing Director. The opposite party widely published their overseas tour programme for China and Japan during Onam Vacation in year, 2017 in various newspapers. The complainant came across such an advertisement of opposite parties in daily in April 2017.On seeing advertisement, the complainant contacted opposite parties over telephone by the end of April,2017. On making such enquiries about such tour programme during Onam vacation, the 2nd opposite party along with its staff Ms.Athira, came to complainant’s friend Mariamma Hergemoller’s Residence on 1.05.2017 and furnished brochure of tour programme commencing from 31.08.2017 to 09.09.2017 during Onam vacation. The complainant was also present at residence of Mariamma Hergemoller at time when 2nd opposite party and Athira came to her residence. They also apprised about tour programme. The tour consists of 9 nights and 10 days. the complainant and her friend Sangeetha Jain who is also an overseas citizen of India having German citizenship decided to join tour and paid Rs.50,000 as advance for both of them. According to opposite parties’ total cost of tour programme for one person would come to Rs 1,42,000/-. The complainant paid balance amount of Rs 1,17,000/- to opposite parties on 28.07.2017 by transfer of money to account of 1st opposite party. On 1-8-2017, the opposite panties arranged meeting of the persons who applied for the joint tour programme. Accordingly, the complainant also presents in the meeting on 1-8-2017 held at Ernakulam. In the said meeting, the opposite parties obtained original Passport from the complainant and other for the purpose of applying for visa. Though the complainant produced the certificate of the OCI, the opposite parties informed that it was not required. But subsequently the opposite parties on 24-8-2017 contacted the consultant over telephone and requested to provide a copy of the certificate of the OCI, by WhatsApp. Accordingly, the complainant also submitted a copy of the Certificate of Registration as overseas citizen of India as requested by the opposite parties on 24-8-2017 to the opposite parties by WhatsApp. No interview is held by the Chinese Embassy for issue of visa. There is no payment of the applicant by the Embassy for holding interview of unnecessarily requested the complainant to go to Chinese Embassy at New Delhi and the complainant was made to incur expense unnecessarily for travelling to New Delhi. The opposite parties did not arrange visa for the complainant. 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 1-9-2017 as per the schedule.
Accordingly, she prepared for the tour programme and was about to go to Cochin International Airport at 7.30 PM. It was only on 1-9-2017 at 11:17 AM the opposite parties called up the complainant over phone and informed her that her visa could not be arranged. It is only due to the carelessness and negligence on the part of the opposite parties that visa could not be arranged in time. Hence, the complainant could not join the tour programme on 1-9-2017 for China and Japan. The negligence and the failure on the part of the opposite parties to arrange visa amounts to deficiency of service. The above said complaint on the part of the opposite parties amounts to the deficiency of service. They are liable to return Rs.1,42,000 /- and to pay compensation towards the deficiency of service and cost of the proceedings.
Notice :
Notice was issued from the Commission to the Opposite Parties and the Opposite Parties received the notice, entered appearance and filed their version.
VERSION FILED BY THE OPPOSITE PARTIES
The complainant and the Opposite parties have no relationship for attracting the Consumer Protection Act. If any dispute arising in the transactions in between the complainant and the opposite parties it will come only under the jurisdiction of civil court.
It is submitted that at the time of enquiry made by the complainant itself it was informed her that the tour programme should be subjected 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. The opposite party Booked Food, hotel and accommodation and other facility to the complainant. The opposite party reserved tickets for the Royal Caribbean Cruises on 16-8-2017 itself the tickets were booked for the passengers including the complainant. It is submitted that 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 from the Chinese Embassy. In fact, the complainant is duty bound to pay the above flight charge to these opposite parties. From the above acts the complainant herself withdrawal from the tour programme and the opposite parties is not liable to pay the amount claimed in the complaint. There is no deficiency of service from the part of the opposite parties. The Opposite party did all the things what are necessary as a tour organizer.
Evidence :
The complainant has filed the Proof Affidavit and 4 documents which is marked as Exbt.A-1 to A-4. The complainant examined as PW-1
Exbt.A1: Brochure of opposite parties relating
to the tour programme during Onam vacation from 31-8-2017 to 9-9-2017 to China and Japan.
Exbt.A2 : Receipt dated 1-5-2017 issued by
The opposite parties to the complainant for Rs 50,000/- only.
Exbt.A3: Copy of visa application of the
Complainant submitted to the Chinese Embassy through the opposite parties.
Exbt.A4: True copy of accounts statement of the
Complainant with the South Indian Bank, Kanjukuzhy Branch, Kottayam, showing remittance of amount to the account of the opposite parties.
The opposite parties had produced 6 documents before the commission.
1) copy of the tour booking form.
2) copy of the cruise summery.
3) copy of the set sail pass issued by Royal Caribbean International in the name of the complainant.
4) Travel summery showing the name and address of the complainant.
5) The confirmation form for the boarding of the tour members started from 2 9-2017.
6) The list of passengers to the tour programme.
The following points are to be examined in this case:
I Whether the complaint is maintainable or not?
II Whether the complainant proved any deficiency in service or “Unfair Trade practice” from the side of the opposite party to the complainant?
III If so, whether the complainant is eligible to get any compensation from the opposite parties?
IV Cost of the proceedings if any?
6) Point Nos. (I) to (III)
The issues mentioned above are considered together and answered are follows:
The complaint is maintainable as per the Section 12 of The Consumer Protection Act, 1986. In the above case, the complainant has produced Ext.A1-A4 .The opposite party was then issued notice through the registered post and has filed their version. The complainant has incurred the loss of Rs 1,42,000/- along with 18% interest Exbt.A1 shows the Brochure of opposite parties relating to the tour programme during Onam vacation from 31.08.2017 to 09.09.2017 to China and Japan,Exbt.A2 shows the Receipt dated 01.05.2017 issued by the opposite parties to the complainant for Rs 50,000/-, Exbt.A3 shows the True Copy of visa application of the complainant submitted to the Chinese Embassy through the opposite parties, Exbt.A4 shows the True copy of accounts statement of the complainant with the South Indian Bank, Kanjukuzhy Branch, Kottayam, showing remittance of amount to the account of the opposite parties.
The opposite parties had promised to arrange visa for the complainant well in advance. But the opposite parties could not keep the promise. The schedule of the tour programme was also changed from 31.8.17 to 1.9.17. This change in schedule was informed only when Mariamma contacted the opposite party two days prior to the schedule.
There is no explanation as to why the opposite party did not inform the complainant earlier even though the opposite party knew that the complainant's visa was not ready. No evidence was produced by the opposite party before the Commission that the complainant was informed about it. The opposite party asked the complainant to report at Nedumabassery International Airport on 1.9.17 at 7.30 pm. On the same day at 11.17 am the opposite party informed the complainant that her visa could not be arranged and he asked her to contact the Chinese Embassy over telephone.
The opposite party received Rs 1,42,000/- from the complainant and the opposite party gave a receipt for the same. This was also repeated in the statement given in the witness box by the complainant. The Commission was unequivocally convinced the fact that the complainant entrusted her passport with the opposite party well in advance for getting visa for the proposed tour. For obtaining the visa no sincere and meaningful effort was made by the opposite party.
The opposite party did not inform the complainant at the appropriate time about the fact that it was not possible to get a visa. It is also strange that the opposite party instructed the complainant to go to Delhi and get the visa fixed just before the tour programme. The Commission also observed that the opposite party could not prove the allegation of the complainant that the opposite party deliberately sent the complainant to Delhi knowing that there was no possibility of getting the visa for the proposed tour.
The documents of booking of tickets for travel and accommodation were produced before the commission to prove that the opposite parties had done so in good faith. But the opposite party knows very well that such a booking is of no use to a visa-less person since visa is an essential pre-requisit for a foreign trip. Therefore, the good faith of the opposite party is questionable and gives strength to the complainant's allegation of deficiency in service on the part of the opposite party.
These facts remain undisputed. The loss incurred by the complainant towards the arrangements made for the proposed tour is not fully substantiated by the complainant and hence is partially allowed as below.
As a result, we direct as follows:
The Opposite party shall pay the complainant Rs 1,42,000/-
as compensation @9% as interest for loss caused to the complainant due to the deficiency in service and “unfair trade practice” of the opposite party.
The Opposite party shall pay to the complainant Rs 10,000/- as compensation for loss incurred by the complainant towards the purchased flight ticket and processing of visa application.
The Opposite party shall pay to the complainant an amount of Rs.5,000/- as the cost of proceedings.
The above orders shall be compiled with, within 30 days from the date of receipt of a copy of this Order.
Dictated to the Confidential Assistant Ambily transcribed and typed by her corrected by me and pronounced in the Open Commission.
Pronounced in the open Commission on this the 27th day of October 2022
r
ected by me and Pronounced in the Open Commission Sd/- D.B. Binu , President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia T.N , Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s exhibits
Exbt.A1: Brochure of opposite parties relating
to the tour programme during Onam vacation from 31-8-2017 to 9-9-2017 to China and Japan.
Exbt.A2 : Receipt dated 1-5-2017 issued by
The opposite parties to the complainant for Rs 50,000/- only.
Exbt.A3: Copy of visa application of the
Complainant submitted to the Chinese Embassy through the opposite parties.
Exbt.A4: True copy of accounts statement of the
Complainant with the South Indian Bank, Kanjukuzhy Branch, Kottayam, showing remittance of amount to the account of the opposite parties.
Opposite parties Exhibits
1) copy of the tour booking form.
2) copy of the cruise summery.
3) copy of the set sail pass issued by Royal Caribbean International in the name of the complainant.
4) Travel summery showing the name and address of the complainant.
5) The confirmation form for the boarding of the tour members started from 2- 9-2017.
6) The list of passengers to the tour programme.
Depositions
PW1 :: Sanjitha Jain
CC No. 400 /2017
Order dated 27.10.2022
