THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C.474/2013

Dated this the 5^th day of November, 2018

(Smt. Rose Jose, B.Sc, LLB.              :  President)

                                                                        Sri. Joseph Mathew, M.A., L.L.B.      :  Member

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ORDER

Present: Sri. Joseph Mathew, Member:

        This petition is filed under Section 12 of Consumer Protection Act, 1986.

The case of the petitioners is that, the opposite parties have made an advertisement in the Malayala Manorama daily in the month of January, 2012 inviting tourists to participate at their tour programme to Australia on 13/05/2012. In that advertisement, the opposite parties offered some special benefits to the early applicants. This advertisement induced them to pay the initial amount towards the tour cost immediately and so they had paid Rs.30,000/- on 12/01/2012 along with their passport and other required documents. The 1^st opposite party had issued an acknowledgement towards the amount collected. As per the itinerary given by the opposite parties the tour was scheduled to start on 13/05/2012 from Kochi. The 1^st petitioner is a Civil Engineer and since the date of tour was fixed, he had arranged his works and avoid certain engagements for 15 days from 12/05/2012 onwards. In the last week of April 2012 when he contacted the 2^nd opposite party for conformation it was told that the tour has been postponed to 24^th May. But even on that day also the tour was not started. Finally the opposite parties informed him that the tour will be conducted on the 1^st week of June 2012 but from Mumbai instead of Kochi. Though the change of date was affected him very badly, since they are helpless, they agreed for the present conditions. The opposite parties had collected the balance amount being the cost of the tour by that time also. Accordingly they started from Nedumbassery to Mumbai and at Mumbai Air Port the opposite parties given a new itinerary showing that trip to Singapore has been curtailed without their knowledge or consent. Since the Singapore trip was the main attraction of the tour programme, cancellation of that trip caused utter dismay and displeasure to them.

The petitioners further stated that at the time of booking, the opposite parties promised him that they will be assisted with able guides and service minded staff throughout the journey. But as against their promise when they reached Brisbane, nobody was there to assist them. So he contacted the 2^nd opposite party over phone from there and they replied that they will arrange everything immediately but nobody has come to pick them up or to help them. It is stated that due to the stress and strain the 1^st petitioner fell ill and was taken in a wheelchair from the Airport but even then no help was provided to him by the opposite parties. The other passengers along with them was an old couple and they are forced to look after the convenience of that old couple also. The opposite parties had also omitted Gold Coast Melbourne and Stoberry  Garden from the tour package without informing them. The opposite parties had also promised 3 times food everyday but they have not served lunch meal as offered, and this caused much miseries and financial loss to the passengers. Moreover due to the negligence and callous attitude of the opposite parties he and his wife are forced to board in different flights in their Australian journey and that also caused much hardships to them.

It is also stated that, the opposite parties had done a third rate arrangement with another company Viz. JTB and the opposite parties are merely supplying passengers to them. Only on the belief that the opposite parties were a responsible tour conducting agency without any malpractices he had booked the trip with them. Anyway they had undergone untold sufferings and miseries on all occasions of the tour for one reason or other and was unhappy throughout the journey. So after return he had issued a letter to the 2^nd opposite party on 24/06/2012 with details of the tour and the unpleasant experiences tasted by them during the entire tour days but the 2^nd opposite party has not even sent a reply to that notice. From the said act of the opposite party it is understood that the opposite parties had some clandestine agreement with some other company for arranging passengers for making illegal profits for both the parties. Since there was no reply to his notice from the 2^nd opposite party, he caused to sent a lawyer notice to the 2^nd opposite party on 01/06/2013 demanding Rs.2,50,000/- each as compensation for their sufferings. To that letter the opposite party sent reply raising false and untenable contentions. The said act of the opposite parties amounts to unfair trade practice and also deficiency in service on their part and that caused huge financial loss, much mental stress and strain and other untold sufferings to him and his wife for which the opposite parties are jointly and severally liable to compensate them. Hence this petition is filed to direct the opposite parties to pay Rs.2,50,000/- each as compensation to them and also cost of the proceedings.

The opposite parties filed a joint version with the following contentions. It is admitted that they had made an advertisement in the newspaper as stated by the petitioners in their petition but it is stated that except the offers made in the advertisement no special offers were given to the petitioners. It is also admitted that they have received Rs.30,000/- and other travel documents from the petitioners on 12/012012. It is stated that as per the itinerary the tour was scheduled to start on 13/05/2012 but the total number of persons expected by them was sixty but only 10 person were registered for the tour and so they are not in a position to conduct the tour programme as per the schedule. So they informed the 1^st petitioner in advance that they could not operate the tour and requested him to get back the money paid by him. Then the petitioner insisted them to arrange any other tour operators for them to go to Australia and thereupon they had arranged the reputed tour operator Thomas Cook for the petitioners journey to Australia and Thomas Cook’s itinerary was also given to them in advance which was similar to their itinerary also. The petitioners had willingly accepted the proposal. The change of date and place of boarding was also informed to the petitioners and they had accepted it without any hesitation also.

The allegation of the petitioner that since they are helpless, they agreed for the programme was denied as false. They have received the balance amount only after informing the petitioners about the change in the tour programme and they had paid the balance amount after fully agreeing to the changes. The new itinerary was given to the petitioners at the time of making balance payment and the allegation to the contrary was denied as false. In the first itinerary also there was no stay back at Singapore and so the allegation that Singapore trip was the main attraction of the tour and so cancellation of that portion caused utter dismay and displeasure to the petitioner was not true or correct. It is also stated that they have not made any promise to the petitioners that they will provide able guide and service minded staff to assist them throughout the journey but promised only the service of a tour manager and they had provided the same also. The allegation that when the petitioners contacted the 2^nd opposite party over phone from Brisbane nobody had come to pick up them and to give assistance was also denied as not true and stated that the petitioner were given proper guidance and assistance by their tour operator. The petitioners had never informed them that the 1^st petitioner fell ill and requested assistance. The said allegation was made only for the purpose of this petition. They were given Gold Coast Melbourne and Strawberry Garden visit even though these programmes were not mentioned in the earlier itinerary and the allegation contrary to this is not correct. The petitioners were given food including lunch all over these days. The allegation that the petitioners were forced to board in different flights was also not correct.

It is also stated that, they had arranged the tour through Thomas Cook-a reputed travel agent and the changed itinerary was given to the petitioners well in advance. The agency Thomas Cook had given all the facilities and assistance to the petitioners whenever needed and nobody else in that tour programme had made any complaints against them for any service deficiency except the petitioners. On receipt of the letter sent by the petitioner on 21/05/2012, the 2^nd opposite party through his staff contacted the 1^st petitioner and apprised of the real facts and that is why no reply was sent to that letters. The lawyer notice was replied stating true and correct facts. The total cost for the tour was Rs.2,08,200/-, Rs.78,500/- as cost of tickets and USD 21000 as tour cost, but the petitioners had paid only Rs.3,82,000/-. After completing the tour successfully and enjoying the same, now this petition is filed only with the malafied intend to harass them and to extract some amount some way or other from them. The amount claimed as compensation is highly exorbitant and also exaggerated without any basis. There is no deficiency in service or any unfair trade practice on their side as alleged and they have not cheated the petitioners or extracted any amount illegally from them. The petitioners are not entitled to get any of the reliefs sought for in the petition and they are not liable to pay any amount also. Hence prayed to dismiss the petition with cost to them.

The matters for determinations are:

1. Whether there is any deficiency in service on the part of the opposite parties?
2. Reliefs and costs if any?

Evidence consists of the affidavits filed by both the parties, Ext.s A1 to A7 and depositions of PW1 and RW1.

Point No. 1: According to the petitioners as against the itinerary given to them, the opposite parties had changed the tour programme without their knowledge or consent. He and his wife joined in that tour on the belief that the opposite parties themselves are conducting the tour and they will make arrangements for visiting all the places mentioned in itinerary issued to them while booking the seats and will provide all the facilities including food as offered. The petitioner produced the said itinerary and was marked as Ext. A3. As per Ext. A3 itinerary the team will depart from Cochin Airport to Singapore at 11.45 pm on 13/05/2012. After visiting all the important places at Singapore, Brisbane, Gold Coast including Dream World, Sea World and Movie World, Melbourne and Sydney on these days and the team will arrive at Cochin on 10.45pm on 22/05/2012. As per Ext. A3 breakfast, lunch and dinner was also offered on all these days. But as against this schedule, the opposite parties had changed the programme and the journey started only on the 1^st week of June 2012 and that too from Mumbai instead of Cochin. Only at the Airport Mumbai the opposite parties had given the new itinerary showing that trip to Singapore has been curtailed.

According to the petitioner, after collecting the amount the opposite parties have handed over them to another agency Viz. Thomas Cook and actually they had conducted the tour and the opposite parties have not done anything to help or assist them during these days. Thomas Cook who had conducted the tour omitted Gold coast, Melbourne and Strawberry Garden from the programme. They also has not provided lunch to the passengers as offered by the opposite parties. All the passengers suffered much mental pain, financial loss and other inconveniences on all these days and was unhappy throughout the journey.

According to the opposite parties only 10 persons are booked seats for their journey and so they are constrained to cancel their programme and this matter was informed to the petitioners in advance and as insisted by the petitioners they had arranged Thomas Cook for the petitioners’ journey to Australia. The changed itinerary was given to the petitioners at the time of collecting the balance amount. The changed itinerary was almost similar to their itinerary also. But since the petitioners had denied the said contentions of the opposite parties, it is for them to prove their contentions with supportive evidence. But the opposite parties have not produced any evidence in this regard or produced the itinerary of Thomas Cook for a perusal.

The petitioner was examined as PW1. He deposed in lieu of his petition. Sri. Joseph George, Accounts Manager of opposite parties was examined as RW1. In cross RW1 admitted that, they have not informed the petitioners in writing the postponement of the scheduled programme or the change of agency or the fact that Singapore stay was cancelled as per the new schedule. RW1 also deposed that after engaging Thomas Cook to conduct the tour, they have not arranged any guide to attend the petitioners and they are not aware how Thomas Cook had managed the petitioners throughout the journey. From the statement of RW1 it is clear that after entrusting the petitioners to Thomas Cook the opposite parties have not cared to attend the conditions of the petitioners at any time during these days, whether Thomas Cook had made arrangements for visiting every places mentioned in the itinerary, whether they have provided food & accommodation, provided the assistance of any guide to help them and such other facilities to the petitioners as offered. Since the opposite parties had collected the amount and handed over the petitioner to another agency, they are bound to see that all the facilities were provided to them by the agency and all the passengers are happy and satisfied in that tour. But it is found that the opposite parties had failed to perform their duty and this amounts to deficiency in service on their part. Point No. 1 found accordingly.

Point No. 2: the petitioner in his petition stated that he is a Civil Engineer and for the journey he had arranged his works after avoiding certain engagements for 15 days from 12/05/2012 onwards and due to the postponement of the journey for two times he had suffered heavy financial loss and other inconveniences and so the opposite parties are liable to pay Rs.2,50,000/- each to himself and his wife as compensation for the financial loss and other inconveniences suffered during the tour programme. But in his petition, the petitioner himself had stated that “he had contacted the 1^st opposite party’s office in the last week of April 2012 and one Mr. Kevin, the staff of the opposite party attended the call but he didn’t give any assurance regarding the tour scheduled on 12/05/2012 and they informed him that the tour was postponed to 24^th May. But that day also the tour was not started and finally the tour started on the 1^st week of June 2012”. This statement shows that the petitioner was aware of the change in the tour programme in advance and so if he was facing much inconveniences and has to suffer huge financial loss due to the change in the programme as alleged, then he could have very well cancel his booking and get the paid amount back, and can avoid the alleged financial loss. Moreover in his letter issued to the 2^nd opposite party dated 21/05/2012 which was marked as Ext. A4, it is written that, he is giving the opposite parties one more month time from 24/05/2012 for conducting the tour and if they are arranging the tour within 24/06/2012, he is willing to join in that group and if not they are liable to refund the paid amount with compensation. It is admitted that the tour was started during the 1^st week of June 2012 which was within the time period allowed by the petitioner. This shows that the petitioner had joined in the changed tour programme by their own will and not because of any force in the part of the opposite parties. So he cannot claim any compensation for the loss of income if any from the opposite parties due to the postponement of the tour and the said prayer is not admissible also. But from the evidence it is found that the petitioner had suffered much inconveniences, mental agony and other hardships throughout their journey. Moreover the opposite party had failed to disprove the allegations of the petitioners that the agent Thomas Cook had cancelled Singapore visit and many other important places from the scheduled programme and was not provided the offered facilities as per the itinerary given to them by the opposite parties. So the petitioners are entitled to get reasonable compensation in this regard. Hence we are of the view that allowing Rs.1,00,000/- as compensation is just and proper in this case.

In the result, the following order is passed.

            The opposite parties are ordered to pay Rs.1,00,000/- (Rupees one lakh only) as compensation to the petitioners for their sufferings and Rs.5,000/- (Rupees five thousand only) as cost of the proceedings within 60 days from the date of receipt of this order. Failing which, the whole amount will carry 9% interest per annum from the date of default till payment.

Dated this the 5^th day of November, 2018

Date of filing: 22/10/2013

PRESIDENT                                      SD/-MEMBER

APPENDIX

Documents exhibited for the complainant:

A1. Receipt issued by 1^st opposite party dated 12/01/2012

A2. Cash receipt voucher

A3. Itinerary issued by the opposite party

A4. Copy of registered notice issued to 2^nd opposite party

A5. Copy of registered notice issued to 2^nd opposite party

A6. Copy of lawyer notice issued to 2^nd opposite party

A7. Reply received from 2^nd opposite party

Documents exhibited for the opposite party:

Nil

Witness examined for the complainant:

PW1. Abdul Farook (Complainant)

Witness examined for the opposite party:

RW1. Joseph George ( Manager (Accounts) of 1^st Opposite party)  

Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT