Complainant through Adv. Shri. Melwani
Opponent No. 1 through Adv. Kamble
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(23/04/2013)
This complaint is filed by the tourist against the traveling company for deficiency in service. The brief facts of the complaint are as follows,
1] The complainant is the resident of Fergussion College Road, K. P. Kulkarni Marg, Pune – 4. The opposite party is dealing in the business of travel and tours and also arranging Package International Travel and tour by charging service charges. Opposite party has advertised that its company is of international standards and it arranges holiday trips to European countries for given package charges. The advertisement was very attractive and hence complainant approached to the office of opposite party and booked European package for himself, his wife and children. It was assured by the opposite party that there is a stay in three star hotel at the time of tour. The complainant has paid Rs. 4,00,000/- for the entire package tour. The complainant had given preference for Non vegetarian food while filling up the form. The complainant has booked such tour for the period of 19 to 29th May 2010. The complainant had informed the opponent in advance that his two children are traveling along with him and paid charges, which were applicable for them. But the boarding pass at Qatar for one infant was received just prior three minutes from the departure of the plane. Non vegetarian food was not provided as per agreement. He had paid an amount of Rs. 6,000/- for U. K. Visa for three hours visit to London. There were no reservations in the hotel. Complainant has faced lot of problems. The opponent has totally neglected the complainant during the period of tour. Hence he had issued notice to the opposite party and claimed compensation. The complainant was required to pay an amount of Rs. 900/- at Frankfurt Airport due to negligence of the opposite party. The complainant has asked compensation of Rs. 50,000/- for deficiency in service, inconvenience, mental agony and for non enjoyment of the trip. He has also asked an amount of Rs. 900/- which were paid by him at Frankfurt Airport due to negligence of the opposite party. He has further claimed notice charges and compensation as well as interest.
2] The opposite party appeared and resisted the complaint by filing written version on 20/12/2011. The contents of the complaint are flatly denied by the opposite party. According to the opposite party, this Forum has no jurisdiction to entertain and try the present complaint. It is also denied that there was deficiency in service on behalf of the opposite party. The compensation as well as interest is claimed by the complainant is exorbitant and against the principles of Law. It is further contended that there is clause in the agreement between the parties that all the suits, plaints and disputes shall be instituted at Mumbai. It is not disputed by the opposite party that the complainant had booked European tour on 25/11/2009 for himself, his wife and two children by making payment of Rs. 3,34,659/-. It is further contended that the opposite party is the service provider as regards making arrangement of package tour and if any act, omission or default on behalf of individual contractor or servant, then the opponent is not responsible for the same. It is further contended that the hotel IBIS is three star hotel, where complainant had stayed during the course of tour. The allegation as regards the payment of charges at Frankfurt Airport are denied. The opposite party has prayed for the dismissal of the complaint.
3] After scrutinizing the documents, which are filed on record and hearing the arguments of both the councels, the following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether the complainant has proved that there was deficiency in service on the part of the opposite party? | Partly proved |
2. | What order? | Complaint is partly allowed |
REASONS :-
4] The admitted facts in the present proceeding are that the complainant, his wife and children booked the European tour through the opposite party. It is also not in dispute that they have completed the said tour as per the program arranged by the opposite party. It is the case of the complainant that so many deficiencies have been caused by the opposite party while conducting the said tour and the opposite party has not abided its words and promises, which were given at the time of booking of tour.
The complainant has mainly alleged that the opposite party has not provided three star hotel for stay, while they were traveling through Europe. Second grievance is that, the opposite party has caused deficiency in service while obtaining boarding pass for the infant children. The third grievance is that the opposite party has not made arrangement of Non vegetarian food as per assurance. It is also contended by the complainant that he had required to pay additional charges of Rs. 900/- towards GST refund. According to the complainant, the complainant, his family members had faced so many inconveniences, while traveling during the tour program. Dinners were insufficient, hence the complainant had required to spend expenses for the food.
As regards these allegations, it is the case of the opposite party that the tour was conducted by other Agency and the opposite party is not responsible for any inconvenience caused due to fault of Agency.
As regards the allegations made by the complainant about the inconvenience caused to family members of the complainant by giving boarding pass for infant at late stage is not seriously challenged by the opposite party and definitely that amounts to deficiency in service. According to the opposite party, complainant never gave option for non vegetarian food, hence he can not made complaint for the same. It is significant to note that the form, which were filled in by the complainant are in the custody of the opposite party and the opposite party has not produced those documents. Under such circumstances, the inference can be drawn that food, which was assured by the opposite party was not provided to the complainant and his family members.
As regards third grievance about stay in three star hotel, it is the case of the opposite party that stay of the passengers of the tour were n the hotel named IBIS i.e. three star hotel. This fact is not seriously disputed by the complainant, hence I do not find much substance in the allegation made by the complainant about stay of himself and his family members in low grade hotel
The opposite party had shown ignorance about amount of Rs. 900/-, which were deposited by the complainant. As per agreement, the opposite party has agreed to bear all the costs and expenses of the tour, hence the complainant is entitled to this amount. It appears from the record that the complainant has proved that there was deficiency in service rendered by the opposite party and the opposite party can not claim excuses by saying that the tour was conducted by another Agency. Hence I held that the opposite party is liable to pay compensation.
As regards the jurisdiction, the opposite party has strongly raised this issue on the basis of agreement between the parties. It is the case of the opposite parties that all the disputes between the parties shall be resolved by the Forum, Tribunal or Court at Mumbai. It is significant to note that the jurisdiction of the court or Forum can not be restricted by the agreement of the parties. At the most it can be said that the parties have additional option to institute proceeding in the Courts or Forums, which is agreed by the parties. But the agreement can not take away the rights of the party to institute proceeding in the Forum, where cause of action took place. As per the provisions of The Consumer Protection Act, 1986, the Consumer Forum in which jurisdiction the opposite party is staying and cause of action arose is having jurisdiction to try and entertain the complaint. Hence I do not find any substance in the contentions raised by the opposite party as regards jurisdiction and I held that the District Consumer Forum, Pune has jurisdiction to try and entertain the present complaint.
In the light of the above discussion, I held that this Forum has jurisdiction to entertain the present complaint. The opposite party has caused deficiency in service and the complainant is entitled to compensation to the tune of Rs. 10,000/- for deficiency, an amount of Rs. 5,000/- on the ground of physical and mental sufferings and an amount of Rs. 900/- which were paid by the complainant as deposit during the tour and complainant is also entitled to amount of Rs. 1,000/- towards costs of the proceeding. In the result, I answer the points accordingly and pass the following order,
** ORDER **
1. The complaint is partly allowed.
2. It is hereby declared that the Opposite
Party has caused deficiency in service.
3. The opposite party is directed to pay
total amount of Rs. 16,900/-(Rs. Sixteen
Thousand Nine Hundred only) to the
Complainant within six weeks from the
date of receipt of copy of the order by the
opposite party.
4. Copies of the order be supplied to both
The parties free of cost.
