PER SHRI. U.V. JAWALIKAR – HON’BLE PRESIDENT (I/c)
1) Heard Ld. Complainant in person.
The Opposite Party despite called at 11.30 a.m. in the morning and after keeping back matter at 1.00 p.m. remained absent. The Complainant filed written argument and the Opposite Party filed written notes of argument. The pleadings are completed, therefore, the complaint is taken for final hearing.
2) The Complainant has alleged deficiency in service by the Opposite Party during Grand Europe Tour for 21 Nights 22 Days. It is alleged in the complaint that the Opposite Parties took Rs.37,400/- from the Complainant towards said tour. It is also alleged that as per brochure annexed at 9D, the total tour cost was Rs.1,69,999/- per person on twin sharing basis. The Complainant attended the tour alongwith his wife. Therefore he paid the total amount of Rs.3,40,000/- by cheques to the Opposite Party as per the brochure and itinerary for Grand Europe Tour, 2010 arranged by Opposite Party. The Complainant submitted that the tour was conducted as per the schedule of Opposite Party, however, during the tour at Amstardam, the Opposite Party demanded Rs.40,000/- from the Complainant on telephone. He was told to pay the same amount immediately without any reason. The Complainant told the Opposite Party that he has made full payment as per the Itinerary. Later on while the Complainant and his wife were at Switzerland, again the Opposite Parties asked the Complainant on phone to pay Rs.40,000/-. The Complainant after deliberation and told the Opposite Parties that he has paid as per itinerary. Thereafter at Nice in France the Opposite Party again made demand of Rs.40,000/- to the Complainant through the tour guide. The Opposite Party behaved with the Complainant harshly and insulted before co-travelers. The tour guide threatened the Complainant to cancel the tickets and further association of Complainant with co-travelers. Therefore, in order to avoid further complications and to complete the tour as per itinerary, the Complainant paid Rs.40,000/- on 19/06/2010 at Nice in France under compulsion to the tour guide Mr.Agrim Shah. The receipt Annexed at page no.14 of complaint which bears signed of Mr.Agrim Shah. The Complainant also alleged that as per itinerary page no.9E the Opposite Party had agreed that any fluctuations in the currency rate (Euro to Rupees) would be charged to the clients. Thus, as per the Complainant the total amount of Rs.3,40,000/- was charged by the Opposite Party at the rate of Rs.63/- per euro and the tour cost was calculated accordingly. It is the case of the Complainant that as per the Bank of Baroda Treasury Branch, Card Rate at 9.30 a.m. on 08/06/2010, the rate of Euro was Rs.55.15 paise. The card rate was filed on record at Exh.‘B’. Thus, the Complainant had paid Rs.8/- per Euro in excess. As per itinerary page 9E the Opposite Party is to repay this excess payment as the rate of Euro at relevant time i.e. on 08/06/2010 was Rs.55.15 per Euro which is not paid by the Opposite Party as per the itinerary. The Complainant vehemently argued for the repayment of this excess amount paid to the Opposite Party. The said amount has not been repaid by the Opposite Party till today. The Complainant calculated the difference to the tune of Rs.37,400/- on total cost of the tour was Rs.3,40,000/- as per itinerary Annexure 2. Similarly the Complainant has also prayed for mental agony and cost of this complaint. The Complainant has claimed Rs.4 Lacs from the Opposite Parties towards mental agony etc. Thus, the Complainant prayed for total claim of Rs.4,77,400/- from the Opposite Party.
3) Per contra despite service of notice and knowledge of hearing of matter the Opposite Party did not appear on the day of hearing. Therefore, the written argument filed by the Opposite Party is considered as oral argument.
4)The Opposite Party contended that the tour price per person was Rs.1,90,000/- per person. Thus, it comes to Rs.3,80,000/- and there is no deficiency in service on the part of Opposite Party. The Opposite Party relied on the document at page no.16C which indicate the tour price per person was Rs.1,90,000/- per person. Thus, the complaint is filed just to defame the Opposite Party and with alterative motive and to make financial gain from Opposite Party. It is also contended by the Opposite Party that the service, as per itinerary was provided and the Complainant completed the tour as per itinerary. The Complainant estopped from claiming any deficiency in service and claim of compensation from the Opposite Parties. The Opposite Party also contended that the Complainant has not produced any documentary evidence for breach of promise during tour tenure. Thus, the Opposite Party prayed for dismissal of complaint with counter damage by way of compensation to the tune of Rs.50,000/-.
5) Having recorded the rival contention of the parties it is the fact that, as per itinerary the price of tour cost was Rs.1,69,999/- per person on twin sharing basis. The Complainant with his spouse completed the terms and conditions of Opposite Party. Similarly the amount paid by the Complainant is Rs.3,40,000/-. It was duly accepted by the Opposite Party in 3 installments and acknowledged the receipts. After receipt of Rs.3,40,000/- the Opposite Party at no point of time informed in writing that the Complainant about the amount was to be paid to the Opposite Party. During tour programme on 16/06/2010 the Opposite Party directed the Complainant orally to pay an amount of Rs.40,000/- to the tour guide at Nice in France. Similarly the document at page no.16C i.e. Passengers Booking Data Page cannot be held legal for the tour cost of Rs.1,90,000/- per person. For the reason the tour price to the tune of Rs.1,69,999/- as per the offered and accepted document. Similarly the communication made by Opposite Party on 31/03/2010 to the Consulate General UK Consulate Mumbai about the Grand Europe Tour of Complainants, equivocally indicates total cost of tour per person is Rs.1,69,999/- per adult. Thus, the document at Exh.‘C’ confirms the tour cost as Rs.1,69,999/- per person. Therefore, the document at page no.16C stating the tour cost Rs.1,90,000/- per person does not stand good in the eyes of law.
6) The Complainant also contended that as per itinerary the Opposite Parties have promised that any fluctuations in the currency rate would be charged to the clients. The submission of the Complainant requires to be considered in the light of prevailing currency rates of Euro at the relevant time. The Complainant submitted on record, the rates of Euro declared by Bank of Baroda Treasury Branch on 08/06/2010 and 09/06/2010. After due consideration to the rates of Euro prevailing i.e. on the date of beginning of journey of Grand Tour of Europe on 02/06/2010, the rate of Euro was Rs.55/- and sum odd amount. For the purpose of easy calculation as per report submitted by the Complainant it appears that the rate charged by the Opposite Party was Rs.63/- per Euro and at relevant time it was Rs.55/-. Thus, the difference of Rs.8/- in Indian currency was an admitted fact as per documentary evidence submitted on record. This mean that the Opposite Party has charged the Complainant at higher rates i.e. @ 63 per euro, i.e. excess 8 Rs. were charged by the Opposite Party per euro. Therefore, the Opposite Party shall be under contractual obligation to reimburse the Complainant accordingly.
7) In order to distinguish the entitlement of Complainant to claim the excess amount per Euro it requires to be considered factwise. In written argument filed by the Opposite Party there is no whisper about fluctuation clause in itinerary. Similarly the Opposite Party failed to establish why the Complainant is not entitled to claim the excess price of Euro as per fluctuation in currency rates. Therefore, there is no harm to grant prayers of Complainant seeking Exchange difference of price of Euro.
8) After perusal of the rates of currency it is found that the Opposite Party has charged excess currency rate. Therefore, we are of the view that the Opposite Party is deficient in their service.
9) Similarly as per itinerary it is mutual obligation on the parties to agreement to pay an amount of difference in fluctuation in currency rates of Euro during tour tenure. It requires to be considered that the Opposite Party charged Rs.8/- more per Euro on the date of booking and did not reimburse the said amount of difference to the Complainant even after completion of tour. It is note worthy to be noted that the Opposite Party, despite having written agreement, did not abide by the promise and in our candid view failed to discharge their obligation towards Complainants.
10) So far as the quantum of compensation for mental agony, we are of the view that in foreign land when the Complainant was directed to pay an amount which he was compelled to pay without any agreement and under threat to terminate the tour forthwith before co-travelers, would certainly amounts to hardship and needs to be compensated. To award compensation in given circumstances it is to be noted that the Complainant with his spouse had been to the tour in order to enjoy the places and to make immemorable event in life. It is to be considered that during such period, asking the Complainant to pay an amount which is not outstanding and the threat of cancellation of further tour would certainly deprive the Complainant & his spouse from the peaceful enjoyment of planned tour and received a set back which cannot be compensated in terms of money. However, the quantum of compensation calculated by the Complainant seems to be exorbitant for the reasons that at the fag end of the tour, the Opposite Party has demanded an amount of Rs.40,000/- to the Complainant. We are of the view that in order to consider quantum of compensation it requires to be viewed actual, mental and financial loss caused to the Complainant. Thus, we consider it just and proper to grant Rs.2 Lacs as compensation towards mental agony and hardship to the Complainant which would meet the ends of justice. In our considered view, on the bare perusal of fact that the Opposite Party had demanded Rs.40,000/- from the Complainant. Similarly as per itinerary it was agreed between the parties to pay difference in currency rates which was not fulfilled by the Opposite Parties. Therefore, in view of the above facts and circumstances we pass the order as follow -
O R D E R
i. Complaint No.264/2010 is partly allowed.
ii.Opposite Party is directed to pay an amount of Rs.40,000/- (Rs.Forty Thousand Only) to the Complainant alongwith
interest @ 9% p.a. from the date of filing of complaint till realization of entire amount to the Complainant.
iii.Opposite Party is also directed to pay excess amount of Rs.37,400/- (Rs.Thirty Seven Thousand Four Hundred Only)
to the Complainant alongwith interest @ 9% p.a. from the date of filing of complaint till realization of entire
amount to the Complainant.
iv.Opposite Party is also directed to pay the compensation of Rs.2,00,000/- (Rs.Two Lacs Only) to the Complainant for
mental agony and hardship caused to the Complainant due to deficiency in service on the part of Opposite Party.
v.Opposite Party is also directed to pay an amount of Rs.3,000/-(Rs.Three Thousand Only) to the Complainant towards
cost of this proceeding.
vi.The Opposite Party is directed to comply with the above order within one month from the receipt of this order.
vii.Certified copies of this order be furnished to the parties.
