Dt. of filing -22/06/2017

Dt. of Judgement - 31/10/2018

Mrs. Sashi Kala Basu, President

        This is a complaint filed by the Complainants namely Deba Prasad Chakraborty and Smt. Bani Chakraborty under Section 12 of the Consumer Protection Act against Opposite Parties namely 1) Club 7 Holidays Ltd and 2) United India Insurance Company Limited alleging deficiency in service on their part.

          Brief facts of the Complainants’ case is that they went on a vacation to Portugal and Spain, organized by the Opposite Party No.1 in a ‘Group’. The travel services of the Opposite Party No.1 was hired by the Complainants on a consideration of Rs.3,59,128/- . On 08/06/2016 at Barcelona which was last stop of tour, Complainants along with others were put up in a hotel NM Sant Boi Crta, even de cafell instead of hotel Sant Boi de Dlobregat. They were to stay there till 10/06/2016 before leaving for India. In that hotel, there was no drinking water available in the rooms. There was no arrangement for tea, coffee and fruits. Neither there was any refrigerator to keep the insulin injection. The staff of the hotel refused to provide drinking water. Tour guide Miss. Rabia did not visit the hotel after dropping them in the hotel. On 09/06/2016 at about 8.30 P.M. Petitioner No.2 along with one another co-traveller in the group namely Smt. Subhra Sen went to fetch drinking water from the nearby Gas Station without any security. But on their way to Gas Station, Smt. Bani Chakraborty was brutally assaulted by some local miscreants and they snatched her purse and other belongings inclusive of her Passport, Foreign Currency, Mobile Phone, Spectacle and Medicines etc. Over the said incident a complaint was also filed Petitioner No.2 suffered severe injuries including internal injuries. The agent of Opposite Party No.1 did not co-operate with the Petitioners in such an emergency. The tour leader Miss Rabia did not visit the Petitioners in hospital nor she called Petitioner No.1. Petitioners had to call their sons namely Aninda and Sunanda Chakraborty who live in abroad. They had to arrange tickets paying much higher price to attend their parents. The Petitioner along with his sons had to arrange all further medical help, police help, accommodation and transport in Barcelona by incurring huge cost. Complainants’ had to upgrade their return tickets to business class causing them further cost. They returned to India, Kolkata, after 16/06/2016. Petitioner No.2 was admitted at CMRI on 20/06/2016 and she was discharged on 22/06/2016 advising her further medication. The Opposite Parties have not shown any responsibility and co-operation towards the Complainants relating to their insurance claim from the Opposite Party No.2. So a legal notice dated 02/08/2016 was sent claiming return of the entire tour cost along with allied expenses amounting to Rs.4,73,041/- . But the Opposite Party in its reply refused to compensate. So the present complaint is filed for directing the Opposite Parties to refund the entire tour cost of Rs.3,59,128/- and allied expenses with further direction to pay compensation of Rs.2,00,000/- and litigation cost of Rs.1,00,000/-.

          Opposite Party No.1 has contested the case by filing written version denying all the material allegations made against it. It is the specific case of the OP No.1 that on 09/06/2016, entire group of tourist came back to hotel for overnight halt but Petitioner Bani Chakraborty and Smt. Subhra Sen left the hotel of their own without intimating the concerned guide, hotel authorities or even without the knowledge of the co-tourists. All on a sudden, tour leader got telephone call from some local number and said Subrha Sen informed about the incident. Instantly due care was taken by the Guide for their return to hotel and immediate treatment etc. Opposite Party maintained constant telephonic contact with Petitioner No.1 to know the development relating to Mrs. Chakraborty and regarding position of obtaining Passport etc. Opposite Party on the request of Dr. Chakraborty also arranged the ticket of Mrs. Chakraborty in business class and an extra ticket for his son in business class. Dr. Chakraborty had promised that he would return the differential amount on his return but OP has not received any such amount. Opposite Party No.1 has arranged the hotel in terms of their agreed contractual obligations with the tourist and not as alleged by the Complainants. So question of deficiency of service or unfair trade practice does not arise. Thus the OP has prayed for dismissal of the complaint.

          Opposite Party No.2 has also filed the written version contending inter alia that the Complainants have not disclosed the policy particulars of the alleged travel insurance, name of the insured, issuing policy office and its relevant policy period. There is no disclosure in the complaint as to how the OP insurance company is related in this case. So OP No.2 has also prayed for dismissal of the complaint petition.

          Complainants have annexed with the complaint, documents i.e. copy of cheques, copy of itinerary of OP No.1 along with brochure, copy of complaint filed at police station, some medical documents, e-mails sent to Indian embassy and copy of air tickets.

          Opposite Party No.1 has also filed the documents with their evidence which are copy of registration forms containing rules and regulations and terms and conditions, photocopy of e-mails and copy of tickets purchased.

          In course of evidence both the Parties filed their respective examination-in-chief or affidavit followed by cross examination in the form of filing questionnaire and reply thereto.

          At the time of argument, Complainant and Opposite Party No.1 filed brief notes of argument. Ld. Advocate for the OP No.2 has argued that there is absolutely no document filed by the Complainants to relate the OP No.2 in this case and thus OP No.2 is entitled to heavy cost from the Complainants.

          So in the backdrop of cases of both the Parties, following points require determination:-

1. Whether there has been any deficiency in service or unfair trade practice on the part of the Opposite Parties?
2. Whether the Complainants have any cause of action against OP No.2?
3. Whether the Complainants are entitled to any relief as prayed for?

Decision with reasons

Point No.1

          In this case, there is no dispute that Complainants went on tour to Portugal and Spain in a ’Group’ package organized by the Opposite Party No.1 Complainants paid Rs.3,59,128/- including cost of Visa and service charges of Rs.5,000/- each. Dispute mainly is due to the incident of assault upon the Complainant Smt. Bani Chakraborty in Bercelona, Spain on 09/06/2016. According to Complainants as the hotel where they were put up was in a desolate place with no drinking water available and no arrangement for coffee and tea, Petitioner No.2 along with Smt. Subhra Sen had to go to a nearby Gas Station to fetch drinking water and on the way to said Gas Station she was looted by miscreants and was assaulted, as a result, she sustained fatal injuries. Complainants have also claimed that the said hotel actually was changed in place of hotel named earlier in the brochure.

          It appears from the documents filed by the Parties especially the agreement annexed with the evidence of the OP No.1 that it has been specifically stated that “a list of hotels confirmed for a particular tour will be given prior to departure. Some hotels may be confirmed after departure, while on tour. Sometimes hotels are overbooked and alternative accommodation of similar standard will be provided.”

          It is also mentioned therein that most of the hotels in Europe do not have air conditioning or fans in the room due to favorable weather conditions.

          So from the said recital in the agreement, it is evident that the organizing travel agency (OP No.1) in this case, could change the hotel depending upon the situation. Though in this case, OP No.1 has stated that they changed the hotel at Barcelona because of the good scenic beauty.

          Said agreement also bears the condition which states “It is advisable that the passenger should acquire adequate insurance cover to secure their life, health and property. It is to be noted that Club 7 under no circumstances whatsoever will be liable to the passenger or any other person for any death, personal injury, accident, loss, delay, discomfort, increase in expense, consequential loss and damage to baggage, personal effects however caused. In this condition the expression, however caused includes willful negligence on the part of any person.

          Please note that you would have a direct contractual relation with the insurer and the company is only a facilitator. You have to check the accuracy and correctness of the policies so obtained and in case of any errors or lapses report the same to the insurance company and get the same rectified as Club7 Holidays Ltd would not be responsible for the same.”

          It may be pertinent to point out that the said agreement has been signed by the Petitioner Bani Chakraborty on 07/05/2016 indicating that she was aware about all the terms and conditions mentioned therein.

          In such a situation, the dispute in this case can be separated in two parts. Firstly it has to be adjudicated whether the Complainant Bani Chakraborty was compelled by situation as there was no drinking water as alleged, to go out or it was negligence on her part? Secondly whether there is any nexus to the assault upon Petitioner Bani Chakraborty with the alleged negligence or failure on the part of OP No.1 in providing the facilities as claimed in the petition of complaint. If the Complainants are able to establish the first part then only Opposite Party No.1 will be liable for alleged incident of assault resulting injuries to Petitioner No.2.

          It is an admitted fact that the tour was from 29^th May, 2016 to till 10^th June, 2016. The Complainant did not have any problem with the services provided by the OP No.1 from 29/05/2016 to till 07/06/2016. Even on 08/06/2016 when the Complainants along with other tourists in the group were put up in the hotel at Bercelona, there was no complaint because on that date as per schedule programme sightseeing was made and at night they stayed in the hotel. Even on 09/06/2016 during day as per schedule programme of OP No.1, places were visited and it is only in the evening when all the tourists returned to hotel and were put up there, at 8.30 P.M. Petitioner No.2 with another co-tourist went out. So the incident took place because Petitioner Bani Chakraborty went out. There is no evidence before this Forum that before leaving the hotel, she informed it to either the staff/tour guide of OP No.1 or to the hotel staff. It is stated in the petition of complaint that they went out without any security provided but has not specifically stated that they intimated about leaving the hotel to any staff. One thing has to borne in mind that allegation of not having drinking water in the hotel and for that reason Petitioner No.2 had to go to the said Gas Station becomes unreliable because they were there in the hotel since 08/06/2016. If there was no problem on 08/06/2016  or during whole day of 09/06/2016, suddenly there cannot be non availability of drinking water. Further it is hard to accept that in a hotel, there will not be drinking water. Complainants have not examined any other co-tourist including Subrha Sen who had accompanied Petitioner No.2 on that night. So it substantiates the version of OP No.1 that the Petitioner Bani Chakraborty had gone out for her own personal purpose without intimation.

Regarding the allegation by the Complainants that OP did not provide any co-operation after the incident of assault, OP has contended that the tour guide when suddenly received the phone call from Smt Subhra Sen about the incident of assault, she attended and made the arrangement of their return to hotel and for immediate treatment etc. The documents i.e. e-mails between the OP No.1 and the Petitioner Deba Prasad Chakraborty discards the allegation of non-co-operation. The e-mail dated 14/06/2016 sent by  petitioner Deba Prasad Chakraborty to one Supriyo of Club 7, reflects that he has requested that Supriyo to arrange ticket for his wife in business class for return on 17/06/2016 as she will be released on 16^th evening. He has further requested that Suprio, in the e-mail to arrange ticket also for him and for one Manoj Ray and to see those seats are close to his wife. It is stated in the e-mail by Dr. Chakraborty that he will pay the additional cost to said Supriya in return. There is another mail on the same date sent at 4.01 P.M. where Dr. D.P.Chakraborty has requested to book another additional ticket for his son Sunanda Chakraborty. Tickets were arranged and sent by OP No.1 on 15/06/2016 at 7.03 P.M. by mail is apparent from the copy of tickets itself. So the claim of the Petitioner in the petition of complaint that Dr. D.P.Chakraborty had to upgrade his air ticket to business class thereby incurring further cost from his own pocket becomes unreliable. With regard to allegation that there was no refrigerator in the hotel due to which Petitioner No.1 was unable to keep insulin injection, in this regard, no document has been filed in order to show that Petitioner had informed about him being diabetic or about other ailment before departure for tour. The agreement referred to above is very categorical in this regard. Apart from this, it is evident from the agreement that due to weather condition no air condition is provided in the hotel room and that goes for the refrigerator also.

          So in view of the discussions as highlighted above though it is established that Petitioner No.2 was assaulted by local goons and she sustained severe injuries but the Complainants have not been able to establish that it happened due to any deficiency in services on the part of the Opposite Parties. There is no nexus between the two. Thus this point is answered accordingly.

Point No.2

          Record reveals that a petition was filed by OP insurance company for directing the Complainants to file the relevant insurance policy in order to show that the OP No.2 is related with the dispute in this case but it appears no such document has been filed. There is absolutely no evidence that there was any travel insurance. No policy particulars has been filed by the Complainants. Neither the name of the insured nor the relevant policy period has been stated. So it is very clear that OP No.2 has been unnecessarily made party in this case. However submission of the Ld. Advocate for the OP No.2 that OP No.2 is entitled to the heavy cost, same cannot be allowed as it appears from the record that the Complainants were told about the insurance company, by OP No.1 and so consequent to the same, it was made party.

          This point is thus answered accordingly.

Point No.3

          In view of discussions made above, Complainants are not entitled to any relief and thus this complaint case is liable to be dismissed.

Hence,

ORDERED

CC/339/2017 is dismissed on contest without cost.