IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 30th day of December, 2022
Present: Sri.Manulal.V.S, President
Sri.K.M.Anto, Member
CC No. 115/2019 (Filed on 19/07/2019)
Complainant : Dr.Manuel T.J, Thottumkal House
Kalaketty P.O, Pin – 686508,
Pinnakkanadu, Kondoor Village
Meenachil Taluk.
Phone-9447535204.
(By Adv.George Joseph Kakkanattu)
Vs
Opposite parties : 1. Benny, Manager, Fortune Tours
Fortune Destination Management
Private Ltd, Mannamthara Tower
Paramara Road, Ernakulam North
Kochi-682018, Ph-0484-4020030
8129821425.
2. Bastine Joseph, Managing Director,
Fortune Tours, Fortune Destination
Management (1) Pvt Limited,
Mannamthara Tower, Paramara Road
Ernakulam North, Kochi-682018
Ph-0484-4020030, 8129821425
(By Adv.U.K.Devidas)
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under section 12 of the Consumer Protection Act 1986.
Crux of the complaint is as follows: - The opposite parties are conducting tour package to various countries. The first opposite party conducted to complainant and made the complaint to believe that the opposite parties are conducting foreign tour in a well arranged manner. On 21/02/2019 the first opposite party sent a brochure of South Africa tour package to the complainant in detail about programme including 9 days stay in star hotels. It is further informed by the first opposite party that on 1st day the programme held at Johannesburg and 2nd and 3rd days at the Sun city, 4th day at Gold mine tour and air travel to Georgia, 5th day have to visit Congo caves and Ostrich farm, 6th day Mossel lake, Cape town, 7th day Roborn Island tour, and 8th day it is proposed to have Pseninsula Tour and if proposes the return journey on 9th day and Doha to Kochi on 10th day. The total cost of the tour is Rs.1,75,000/- and complainant paid the said amount on 27/03/2019 and 10/04/2019 through account transfer from the account of the complainant and by cash and cheque entrusted to one Mr.Abhilash, Sales Executive of the opposite parties. It is averred in the complainant that the first opposite party caused to believe the complainant that Sun City of the South Africa is an important tourist spot to be visited where miss world and miss universe are contested. As per the itinerary issued to the complainant, visit to deepest and oldest gold mine in the world was scheduled and there was a trip in a big Cruise ship known as Kaysna Lagoon, but without any explanation the opposite parties cancelled the visit to the Sun City and Gold mine. Though the opposite party offered a trip in Cruise ship but the trip was an ordinary boat. On 14/05/2017 the complainant contacted the second opposite party and informed about the deficiency in service in conducting the tour. Due to deficiency in service of the opposite parties the complainant lost opportunity to visit important places in South Africa which caused much mental pain and agony and financial loss to the complainant. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to pay Rs.3,00,000/- as compensation.
Upon notice opposite parties appeared before the Commission and filed version contenting as follows:-
The complaint is not maintainable before this commission as this commission has no territorial jurisdiction to entertain this complaint. The complainant has willfully supressed the material facts before the Hon’ble Court and did not come with clean hands. According to the opposite parties the present complaint is a counterblast to the complaint filed by the Fortune Destination Management India Pvt Ltd under S.138 of the Negotiable Instruments Act against the complainant.
The complainant has booked a seat in the tour package to South Africa which was conducted on 06/05/2019 and returned on 14/05/2019. The total cost of the tour was Rs.1,90,000/- and the complainant had paid an advance amount to the tour cost on 27/03/2019. Thereafter the complainant in settlement of the amount towards the cost of tour due to the opposite parties executed a cheque bearing no.581566, dated 23/04/2019 for an amount of Rs.1,30,000/- to the opposite parties. The opposite parties presented the cheque for collection through its bank and same was dishonoured for the reason ‘payment stopped by the drawer’, when return of cheque was informed to the complainant, he had issued another cheque bearing No.581567 dated 03/05/2019 for an amount of Rs.1,30,000/- drawn on South Indian Bank Kappadu Branch. The opposite party issued confirmation letter to the complainant and he has started tour on 06.05.2019. The subsequent cheque was also returned on presentation on 07/05/2019 due to the reason that ‘name mismatch’. The complainant deliberately omitted to write in the cheque the name of the opposite parties as Fortune Destination Management (India) Ltd. The return of the subsequent cheque was informed to the complainant through the agent of the opposite parties, who was accompanying with the travellers in the tour package. But the complainant was assured that he would arrange balance amount covered in the cheque immediately after his return and requested to present the first cheque after his return.
After the successful completion of the tour package, the complainant reached in Kerala on 14.05.2019. The complainant has apologised to the opposite parties that he would take necessary steps to lift the stopping of payment in the first cheque for an amount of Rs.1,30,000/- immediately and requested to present the same for collection. Believing the words of the complainant the first opposite party presented the cheque for collection through the bank and the same was dishonoured for the reason “payment stopped by the drawer”. Thereafter the opposite parties caused a lawyer’s notice dated 27.06.2019 to the complainant about the dishonour of the cheque issued by him and demanding payment of the amount of Rs.1,30,000/- within 15 days from the date of receipt of the notice.
The complainant has not paid Rs.1,30,000/- out of Rs.1,90,000/-, the total cost of the tour package. According to the opposite parties the complainant is not entitled to file this complaint before this commission as a consumer in the Consumer Protection Act. As per the terms and conditions of the tour package and itinerary, the opposite party is not liable for any act beyond their control. It is further submitted in the version that nobody has raised any objection during tour package and recorded their satisfaction in the feedback also. The allegations of the paragraph no. 6 to 10 of the complaint are without any basis. There is no deficiency in the service on the part of the opposite parties in the said tour package and completed the tour package with full satisfaction of travellers.
Evidence part of this case consists of deposition of PW1 and Exbt.A1 to A10 from the side of the complainant. Witness of the opposite parties was examined as DW1 and B1 to B9 from the side of the opposite parties were marked.
On evaluation of the complaint version and evidence on record we would like to consider the following points.
- Whether the complaint is maintainable or not.
- Whether there is any deficiency in service on the part of the opposite parties.
- If so what are the relief and cost.
Before discussing the rival submissions and contentions advised by both parties we are of the opinion that, it will be pertinent to note certain undisputed facts. There is no disputes on fact that the complainant had participated in a South African tour package of the opposite parties which was conducted from 06/05/2019 to 14/05/2019. Admittedly the total tour cost was Rs.1,90,000/-. Exbt.A2 prove that the complainant had paid Rs.10,000/- to the account of the opposite parties on 27/02/2019. There is also no dispute that the complainant had issued a cheque for sum of Rs.1,30,000/- to the opposite parties towards the balance cost of tour package.
The first opposite party contented that the complaint is not maintainable before this Commission on two grounds. It is contended by the first opposite party that this commission has no territorial jurisdiction to entertain this complainant as the office of the first opposite party situated at Ernakulam and entire transaction also was done at Ernakulam. On perusal of Ext.A2 which is a statement of account issued by South Indian Bank Kappadu branch Kottayam district, which is the banker of the complainant we can see that an advance amount of Rs.10,000/- only was transferred from the account of the complainant to the account of the opposite parties. On 14/03/2019 Exhibit A5 as proves that the complainant had paid Rs.35,000/- in cash on 10/04/2019 to the opposite parties. According to the complainant the same amount was entrusted to Mr.Abhilash who is a Sales Executive of the opposite parties at Kappadu, Kottayam district. It is further admitted by the opposite parties for the remaining amount the complainant had issued Exbt.B2 cheque in favour of the opposite party which is drawn from the account of the complainant which is maintained with South Indian Bank Kappadu Branch, in Kottayam district. Section 2 (II) of the Consumer Protection Act, 1986 deals with jurisdiction of the District Consumer Redressal Forum as the follows.
- Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs].
- A complainant shall be instituted in a District Forum within the local limits of whose jurisdiction.
- The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or] personally works for gain, or
- Any of the opposite parties , where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office] or personally works for gain, provided that in such case either the permission of the District Forum is given or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institutions; or
- the cause of action, wholly or in part, arises within the territorial jurisdiction of District Consumer Redressal Forum.
Admittedly the part payment of sum of Rs.10,000/- has been done by the complainant through the transfer of account which is maintained by him with South Indian Bank, Kappadu branch, in Kottayam district which is within the territorial jurisdiction of this commission. More over the handing over of the Rs.35,000/- and issuance of B1 cheque is also occurred at Kappadu which is within the territorial limits of this commission. Thus we are of the opinion that this commission has the territorial jurisdiction to entertain this complainant.
Another contention raised by the opposite parties that the complainant had not paid the total cost of the tour package and thereby he is not coming under the definition of the consumer as defined in the Consumer Protection Act. Section 2 (1) d (ii) of the Consumer Protection Act defines consumer as a person hires/awards any service for a consideration which has been paid or promised or partly paid and partly promised and under any system of deferred payment and includes any beneficiary or such services other than the person who hires or avails the services for a consideration paid or promised or partly paid and partly promised under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avail for such service for any commercial purpose. Therefore it is clear that any person hires or avails any service for a consideration paid or partly paid and partly promised is a consumer under the Consumer Protection Act 1986. Here in case on hand the complainant had participated in the South African tour package of the opposite parties by making part payment of Rs.45,000/- and the with the promise of paying the balance amount by issuing the cheque of Rs.1,30,000/- in favour of the opposite parties. Thus we are of the opinion that the complainant is a consumer as defined in the Consumer Protection Act. Point no.1 is found accordingly in favour of the complainant.
Points nos.2 to 3:- The specific case of the complainant is that though the opposite parties offered to visit Sun City and South Africa where mis-world and mis-universe contests were held and visit deepest and oldest gold mine in the world. They excluded these places from the tour programme without any explanation. It is further averred that there was a trip in a big cruise ship known as Kaysna Lagoon, but the trip was in an ordinary boat.
The complaint was resisted by the opposite parties stating that there was no deficiency in service from opposite parties in conducting the tour as offered by them. On going through the Ext.A1, the brochure for the South Africa tour issued by the opposite parties we can see that 2nd day of the tour package was scheduled to visit Johannesburg and Sun City. It is further stated in the exhibit A1 that dinner and over night stay in Sun City ‘SOHO’ 4 star hotel tour was included or similar accommodation in Sun City. On 4th day of the tour package as per Ext.A1 it was scheduled to visit the gold mine in Johannesburg. Though the complainant alleges that these places were omitted by the opposite parties, it is pertinent to note that he had not placed any complaint to the opposite parties even after the completion of the tour package. PW1 who is the complainant deposed before the commission that he had accepted that terms and condition of the opposite parties regarding the tour programme. Though he had deposed during cross examination that on the 2nd and 3rd day of the tour he had complained about deficiency in service to the guide, but there was no averments to that effect neither in the complaint nor in the proof affidavit. During cross examination he had admitted that he had raised the complaint before the opposite parties, when the opposite parties approached for the balance payment. Exbt.B5 is the confirmation letter issued by the opposite party. In Ext.B5 it is stated that the details of the hotels where the accommodation for the participants of the tour package was arranged. Going through Ext.B5 we can see that the accommodation for 6th May and 7th May 2019 was provided in Peer mount hotel and from 7th May and 9th May, 2019. Accommodation was provided at Bakubung Bush Hotel from 9th May to 11th May 2019, accommodation was provided in Diaz hotel and resorts and from 11th May to 14th May at Cape Milner hotel at Cape Town. It is evident that before the departure of the crew from Kochi the complainant was informed about the details of the accommodation during the course of tour package. The complainant had not raised any complaint regarding the accommodation provided by the opposite parties before the departure from Kochi.
It is admitted by the PW1 who is the complainant that he had issued stop payment against the B1 cheque which was issued by him for the payment of balance payment for the tour package in favour of the opposite parties.
PW1 deposed that he informed Abhilash, the encashment of the cheque shall be made only after obtaining the visa. Non obtaining of the visa till 24/05/2019 was the reason for the direction to stop the payment. He further deposed that he had filled up Ext.B4 cheque and issued the same to the opposite parties. The dishonour of the said cheque was informed to him only after 6 to 7 from the date of its honour. During cross examination PW1 admitted that he had agreed to the opposite parties that he would pay the balance amount after his arrival at Kerala. It is further admitted by the PW1 that he did not pay the said amount to the opposite party for the reason that the earlier two cheques were not returned by the opposite parties. Therefore it is evident that the complainant did not pay the balance cost of the tour package ie Rs.1,30,000/- to the opposite party so far. Though the opposite party contented that they have filed a private complaint under section 138 of the Negotiable Instruments Act against the complainant they did not adduce any admissible evidence to prove the same.
On going through the available evidence on record we are of the opinion that the complainant had failed to prove that the opposite parties have not provided the service as promised by them to the complainant. Though the complainant in complaint and proof affidavit stated that co-passenger filed consumer complaint against opposite parties before other consumer forum he did not adduce any evidence to prove the same.
The case of the complainant is not believable as he failed to adduce any evidence to prove that there is an imperfection and inadequacy in conducting the tour programme or providing accommodation as offered by the opposite parties. Considering the nature and circumstances and on the evaluation of evidence we are of the opinion the complainant has failed to prove this case for lack of evidence and the complaint is liable to dismissed. Hence the complaint is dismissed.
Pronounced in the Open Commission on this the 30th day of December,2022.
Sri.Manulal.V.S, President sd/-
Sri. K.M. Anto, Member sd/-
Appendix
Exhibits marked from the side of complainant.
A1- Copy of tour package brochure.
A2- Transaction details of South Indian Bank, Kappadu Branch.
A3- Certificate issued from South Indian Bank,Kappadu Branch
A4- Customer acknowledgment receipt from South Indian Bank, Kappadu branch.
A5- Receipt of payment of Rs.35,000/- dated 10/04/2019 issued fortune tours.
A6- Authorisation letter dated 10/04/2019.
A7- Electronic ticket passenger itinerary receipt
A8- Copy of visitor’s visa affixed passport
A9- Copy of passport
A10- Copy of aadhar card.
Exhibits marked from the side of opposite parties
B1- Copy of complaint filed s.138 of N.I Act 1881.
B2- Copy of cheque dated 23/04/2019.
B3- Copy of cheque (no.581566) return dated 26/04/2019.
B4- Copy of cheque dated 03/05/2019 issued South Indian Bank, Kappdu branch.
B5- Intimation letter of Classic South African tour packages.
B7- Copy of letter from ICICI Bank dated 07/05/2019.
B8- Copy of letter from ICICI bank dated 30/05/2019.
B9- Lawyers notice dated 27/06/2019.
Witness from the side of opposite parties
DW1- Sumesh K.K, General Manager, M/s Fortune Destination Management India (Pvt) Ltd.
By order
sd/-
Assistant Registrar
