STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Mohinder Singh Dhiman s/o Late Shri Bakshi Ram working as Sr.Manager, Bank of Baroda, Regional Office, Chandigarh

 ……Appellant/complainant

V E R S U S

1.            Anuga Holidays (A unit of Anuga Exim Services Ltd. ), M-73B, Opp. Sant Nirankari Public School, Malviya Nagar, New Delhi – 17.

2.            Sanjay Bhardwaj, Managing Director, M/s. Anuga Holidays, M-73B, Opp. Sant Nirankari Public School, Malviya Nagar, New Delhi 17.

              ....Respondents/OPs

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Sh. Parmod Jain, Adv. for the appellant.

                   Respondents exparte. 

PER  JAGROOP  SINGH   MAHAL, MEMBER

                   This is complainant’s appeal against the majority decision dated 11.3.2011 passed by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which his complaint was dismissed.  However, the ld. Single Member of the District Forum allowed the complaint directing the OPs to refund the amount of Rs.40,000/- within thirty days from the receipt of copy of the order failing which to refund it with interest @12% per annum since the date of deposit till the date of realisation.

2.                      The facts, in brief, are that the complainant paid Rs.40,000/- as advance towards a tour package for Port Blair with complementary overseas visit to Switzerland and France starting from Chandigarh.  The total fare for the initial package was Rs.3,75,559/- but as the same was not acceptable to him, a fresh package was provided, the cost of which was Rs.95,600/- per person including the air tickets and Schengen visa, which was to commence from 17.6.2010. All the documents, as required by the OPs, were provided to them for obtaining visa.  He wrote number of emails/letters to the OPs asking about the status of his visa application but the same was never provided. On 17.6.2010 the OPs informed him to check the status of his application from the internet but the details provided did not tally with him or his family.  He finally contacted them on telephone upon which he was told that his visa application was rejected by the French Embassy. On 18.6.2011 he mailed the OP to know the reason for rejection of Visa in reply to which on 23.6.2010 he was informed that his visa application had been rejected by the France Embassy “on behalf of some financial documents” produced by him. It was alleged by him that the OPs indulged in deficiency in service as they did not peruse the documents before submitting the visa application. He finally served a legal notice dated 25.8.2010 seeking refund alongwith interest but to no avail.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                      Notice of the complaint was sent to the OPs but the same were received back with the report of refusal and since refusal is good service, therefore, they were proceeded against exparte. 

4.                      The complainant led evidence in support of his case.  

5.                      After hearing the ld. counsel for the complainant and perusing the record, the ld. District Forum through its majority decision dismissed the complaint.

6.                      Aggrieved against the said majority order the appellant/complainant has filed the present appeal.

7.                      Notice of the appeal was issued to the respondents/OPs for 8.7.2011 but the same were not received back even in spite of lapse of more than thirty days.  The notice was, therefore, presumed to have been served on the respondents and the appeal was ordered to be heard expate.

8.                      We have heard the ld. counsel for the appellant and have also perused the record.

9.                      Annexure A-1 is the proforma invoice issued by the respondents/OPs showing that the tour was to start from Chandigarh. Thereafter the itinerary (Annexure A-3) was sent by the OPs to the complainant which also shows that the tour was to start from Chandigarh. According to the complainant, he had made the payment of Rs.40,000/- to the OPs from his bank account at Chandigarh vide Annexure A-18.  When the visa was refused to the complainant the entire tour was spoiled and, therefore, the District Forum, Chandigarh would have the jurisdiction to try this complaint. 

10.                   According to the complainant, he engaged the services of the OPs for this tour for which the OPs were to charge Rs.95,500/- + sales tax.  Annexure A-3 shows the itinerary as well as the tour cost.  It also shows as to what was included in the tour, which was to be provided by the OPs/respondents.  They were to provide 7 nights accommodation in the mentioned hotels, 7 continental breakfasts etc. etc., air tickets and Schengen visa. In order to obtain the Schengen visa the OPs were to inform the complainant as to what documents were needed to be given by him on the basis of which the OPs were to apply for Schengen visa.  Annexure A-2 is the letter showing therein that “06 months bank statement” was needed for this purposes. The complainant furnished bank statement which, alongwith the other documents, was forwarded by the OPs/respondents to the French Embassy for visa.  There is no dispute about it that the visa was declined.  The reason intimated by the OPs vide Annexure A-14 is that it was rejected due to the “financial documents”.  It was then intimated vide Annexure A-15 that in his bank statement amount should be more than Rs.1,50,000/- only.  As per Annexure A-16, the complainant was intimated that they had checked all the documents in all ways, everything was correct but his bank account was OD (Over Draft) in which enough amount was not shown. What can be gathered from this communication is that the complainant had been granted overdraft facility by the bank and he had furnished the bank statement showing overdraft in negative instead of having the available amount of more than Rs.1.5 lacs and it was due to lack of funds in his bank account that the visa was declined.  In the impugned order the ld. District Forum has mentioned that whatever documents the complainant gave to the OPs, the same were forwarded to the Embassy and, therefore, there was no deficiency on their part.  However, from the documents mentioned in the earlier part of this para it is clear that the OPs were not just a post office to send to the Embassy the documents provided by the complainant.  Had it been so, there was no need to route the same through the OPs and further there was no need for the OPs to invite the visa application to be routed through it.  In that situation, the complainant could have sent the same directly to the French Embassy.  One thing more, there are 196 countries in the world.  Every country has its own norms for granting a visa which is known to these professional tour operators, like the OPs, because they are daily dealing with visa applications and the conditions for grant thereof by different countries. An ordinary person, like the complainant, is not expected to know the visa rules of every country.  Moreover when the services of the OPs have been engaged, it was the responsibility of the OPs to procure Schengen visa for the complainant, the preparatory step therefor was that the documents which are necessary for grant of visa should be forwarded to the French Embassy.  In the present case the deficiency in service on the part of the OPs was that they did not give proper advice to the complainant as to what type of bank statement was needed.  At Sr.No.3 of Annexure A-2, the OPs asked from the complainant/ appellant for a “06 months bank statement”.  It was necessary for the OPs to mention that the bank statement should show at least a credit balance of not less than Rs.1.5 lacs but they did not mention the same in this letter. It may be noted that at Sr.No.2 where  2 photographs each have been mentioned, the complete details of photographs have been given that the same should have white background; it should be a coloured photograph; should be mat finished; focussed on face; of passport size and should not be underlined.  In the same manner as against Sr. No.3, the required amount in the bank statement should have been mentioned by the OPs, but they did not.  The second deficiency on their part was that when the OD statement was given by the complainant, they should have at that very moment informed the complainant as to what was the requirement of French Embassy and that visa was not likely to be granted on its basis.  Without applying their mind and without affording the requisite service, which were expected of them, they forwarded the application to the French Embassy. The height of ignorance is further demonstrated when the OPs wrote the letter Annexure A-8 that the tour was being delayed due to heavy rush in French Embassy. Ultimately vide Annexure A-11 they asked the complainant to track his passport himself upon which he came to know of the rejection of his visa.  It was, thereafter, that the OPs realised that the visa was rejected due to lack of financial documents (Annexure A-14) because the bank statement sent by them did not show a sufficient balance of Rs.1.50 lacs (Annexure A-15 and A-16). There was, therefore, complete deficiency in service on the part of the OP in giving proper service with respect to the details of the documents needed for applying/obtaining the French Visa. 

11.                   The ld. District Forum has also observed that it is for the French Embassy to grant or refuse visa for which no blame can be placed on the OPs.  There is no dispute about it.  However, it was the OPs who were to give proper guidance to the complainant as to what sort of Bank statement he should furnish with the visa application, it is where they failed. For the sake of repetition it may be mentioned that the visa was rejected in the present case solely due to the reason that the bank statement showing a credit balance of Rs.1.5 lacs was not attached with the application to the French Embassy and it was due to the reason that the OPs failed to give this advice to the complainant.  Secondly, when an OD statement was filed, it was not scrutinised by the OPs to see whether the Bank Statement given by the complainant conforms to the requirement of French Embassy and this is precisely the deficiency in service on their part.  Had they informed the complainant about the requisite statement and the complainant had not furnished the said statement, or he had furnished it but even then the visa was declined, then there would not have been any deficiency in service on their part.  We are, therefore, of the opinion that the ld. District Forum did not properly appreciate the deficiency in service on the part of the OPs and rather tried to put the blame on the complainant little realising that he was not aware of the rules for grant of visa and rather it was for this purpose that the application was to be routed through the respondents/OPs so that they may examine that the same was in order and advise the complainant about the deficiency, if any.

12.                   The above discussion shows that the complainant was not properly guided by the OPs though they have already obtained from him a sum of Rs.40,000/-.  The OPs did not render the proper service inter alia for which this amount was taken and remaining was to be taken and, therefore, they are not entitled to digest the same.  In the entire episode there was no fault on the part of the complainant and, therefore, he cannot be denied the refund of the aforesaid amount of Rs.40,000/-. The ld. Single Member of the District Forum, therefore, rightly allowed the refund of the said amount. 

13.                   There is another aspect of the case which has not, at all, been considered.  The complainant was interested in going to Port Blair, Switzerland and Paris. The detailed itinerary is Annexure A-3.  He had obtained leave from his office upto 26.6.2010, as mentioned in his email (Annexure A-10). Due to the fault on the part of the OPs, the entire holiday session was wasted.  The complainant, therefore, could not go anywhere else also in the said holidays.  On the other hand, he was writing emails and making telephone calls to the OPs.  The complainant wrote Annexure A-6 on 12.6.2010 complaining that he had not received any intimation regarding visa and, therefore, cannot make any shopping or currency arrangements.  No reply was sent by the OPs and again he wrote Annexure A-7 on 15.6.2010 intimating to the OPs that there was only one day left in the flight and he had not till then received any intimation from their side due to which he was unable to make any preparation for the tour.  It was in response to this letter that the OPs wrote Annexure A-8 that due to heavy rush in French Embassy, they were taking time to confirm the tour.  As per the flights details (Annexure A-4), the complainant was to travel from Chandigarh to Delhi on 17 Jun (2010) but till 16.6.2010 he did not know anything about the visa.  He wrote an email (Annexure A-9) to one Ms. Priyanka (representative of the OPs) intimating that he had contacted them about 15 times between 6:00  pm to 10:00 pm, that in the beginning his calls were not picked up and subsequently her mobile phone was found to be switched off due to which he was unable to know the status of his tour itinerary and the flight schedule.  He told them that the tour programme was planned by him in view of the schedule provided by the OPs by taking leave from his office which cannot be extended beyond 26.6.2010.  He did not get any response and another email of even date shows that he had till then wasted four days leave and was still unaware of the programme.  He requested for expediting the matter.  It was on 17.6.2010 that the OPs wrote Annexure A-11 asking the complainant to track his passport.   When he tracked the passport, he came to know that his visa was declined by the French Embassy with the result that he had to waste the entire period of leave in despair.  Needless to mention that when such a programme is cancelled, due to the fault of the tour operator, it not only causes mental and physical harassment but torture also.  The ld. Single Member of the District Forum though allowed the complaint but did not grant any compensation for the said harassment and mental torture nor it granted the costs of litigation. We are, therefore, of the opinion that in view of the trauma suffered by the complainant and for the wastage of his entire holiday trip, the OPs should pay Rs.30,000/- as compensation.

14.                   In view of the above discussion, we are of the opinion that the complaint was liable to succeed and the same has been wrongly dismissed by the ld. District Forum. We, therefore, accept the appeal, set aside the impugned order dated 11.3.2011 and allow the complaint by directing the OPs to pay back the amount of Rs.40,000/- alongwith interest @ 12% per annum since 7.6.2010 till the amount is paid back to the complainant. The OPs shall also pay Rs.30,000/- as compensation for mental and physical harassment and Rs.5,000/- as costs of litigation.  If the entire amount is not paid within thirty days from the date of receipt of copy of the order, the OPs shall be liable to pay interest @ 18% per annum w.e.f the date of the order till the entire payment is made to the complainant 

                    Copies of this order be sent to the parties free of charge.

Pronounced.

24^th August, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

hg