Hon’ble Mr. Ajeya Matilal, Presiding Member
Being aggrieved by and dissatisfied with Judgement dated 27.02.2020 in CC/85/2019 passed by DCDRF, Kolkata Unit-II allowing the CC/85/2019, on contest, directing the Opposite Party to refund Rs.1,84,986/- to the Complainants on non-standard basis and pay Rs.5,000/- to the Complainants, as compensation with litigation cost of Rs.5000/-, the Appellant/Opposite Party prefers this appeal.
The fact of the case in the complaint is like that the Complainants desired to avail a package tour to Europe through SOTC Travels for which they contacted Mr. Haider Ali, Branch-in-Charge of the Opposite Party at Bakultala Branch, Kasba. Mr. Ali visited the residence of the Complainants and after such meeting he sent a mail to the Complainants on 19.02.2018 mentioning that total package cost for per person would be Rs.1,45,000/- with other terms and conditions.
As per instructions, given by Mr. Ali, the Complainants handed over the first cheque of Rs.1,00,000/- to the representative of the Opposite Party namely Subrata Mondal on 23.02.2018. The total cost for visiting Europe was Rs.5,80,187/- for four persons. Mr. Mondal collected the necessary documents from the residence of the Complainants along with another cheque of Rs.60,000/- from the Complainant No.1. On 10.05.2018 Mr. Mondal informed the Complainant No.1 to go for biometry at VFS Kolkata, Visa Application Centre, 5th Floor, Rene Tower, 1842, Rajdanga Main Road, Kolkata 700107. The Complainant No.1 was advised to deposit Rs.2,81,926/- in the office of the Opposite Party. The said amount was deposited on 10.05.2018. The Complainants were asked to pay Visa of Rs.24,960/- separately in cash. It was also assured by the Opposite Party that the said amount should be adjusted against the final payment. The total payment made by the Complainants was Rs.4,66,886/-. On 17.05.2018 Mr. Mondal asked the Complainant No.1 to collect Passport and Visa for four persons from Visa counters individually. They visited the place and got individual letter mentioning about the cancellation of visas which were found inside the Passports. The Visas were cancelled by the Italian Consulate on the ground, “the information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable.” This information was given by the Opposite Party. The Opposite Party was responsible for processing the Visa on behalf of the Complainant. But they submitted the papers to the Consulate very late. This was the reason for cancellation of Visa on 17.05.2018 before 6 days of the claimants proposed journey on 23.05.2018. Had the papers been submitted to the Consulate by the Opposite Party in the incident of cancellation of visa might have been avoided. According to the Complainant there was a gross negligence on the part of the Opposite Party.
The Complainants requested Mr. Ali to make an alternative tour programme for them utilising the full amount. But the Opposite Party did not comply with their request. But the Complainant requested the Opposite Party to refund Rs.4,66,886/- vide mail dated 21.05.2018, but the request was turned down by the Opposite Party through another mail dated 23.05.2018 mentioning that the tour was cancelled by the Complainant and as the cancellation was made six days prior to departure, Rs.85,000/- per head and GST would be deducted. But as a good gesture they would deduct Rs.50,000/- per person and GST and the rest amount would be refunded. But Respondents/Complainants were not interested to get partial refund as the cancellation of Visa was not due to their fault. The Complainants sent second mail on 05.06.2018 and third mail on 21.06.2018 for refund of the entire money. On 22.06.2018 the Opposite Party sent a reply stating their inability to refund the entire amount. So another mail was sent to the Opposite Party on 29.06.2018, which was not responded. Finding no other alternative the Complainants approached the Consumer Affairs Department, Grievance Redressal Cell, Government of West Bengal on 19.07.2018 for mediation. During the course of mediation on 09.09.2018 the Opposite Party refunded Rs.2,31,900/- directly by transferring the same to the account of the Complainants. The Assistant Director of the Grievance Cell concerned requested the Opposite Party to refund the balance amount of Rs.2,34,986/- vide a letter dated 29.10.2018. But the Opposite Party remained silent and the Complainants were advised to file statutory complaint before the appropriate Forum. The aforesaid amount of Rs.2,31,900/- was credited directly to the account of the Complainants not being supported by any document signed or agreed by the Complainants prior to making such payments. So, the Complainant filed this case praying for refund of Rs.2,34,986/- being the balance cost of tour with Rs.1,00,000/- as compensation and Rs.10,000/- as litigation cost.
The Opposite Party contested the case by filing a Written Version denying the material allegations of the complaint along with technical pleas. The fact of tour programme and payments made by the Complainants were not disputed. According to Opposite Parties, the Complainants were required to make payment of the entire cost of the tour 45 days before the date of departure. The aforesaid conditions would be evident from clause -4 under the heading “Kindly Note” of the email dated 19.02.2018 relied upon by the Complainants. The Complainant No.1 violating the terms of payment schedule made payment of Rs.2,81,926/- Vide cheque dated 10.05.2018 merely 13 days prior to the date of departure i.e. 23.05.2018.
As per Opposite Party one group tour viz. European Splendor was booked for four persons for consideration of Rs.4,66,886/-, which was scheduled for departure on 23.05.2018. By a mail dated 20.03.2018 all the terms and conditions including cancellation charges were duly informed to the complainant and being satisfied with tour package details they made their first payment of Rs.1,00,000/- through a cheque dated 23.02.2018. As per terms and conditions, the entire cost of tour was to be paid 45 days prior to the date of departure. The complainant paid Rs.2,81,926/- vide cheque dated 10.05.2018 i.e. nearly 13 days prior to the date of departure. According to the Opposite Party, the Visa of the Complainant and his family members were rejected by the Embassy on 10.05.2018 on the ground that the purpose and conditions of intended stay were not reliable. According to the Opposite Party, the granting or rejection of the Visa of the sole discretion of the concerned Consulate and the Opposite Party has nothing to say in this regard. The duty of the Opposite Party regarding Visa was limited in providing assistance which was duly complied by him and under no circumstances, the Opposite Party could be held responsible for rejection of Visa of the Complainant and her family members. The terms and conditions were specific and it was intimated to the Complainant vide mail dated 20.03.2018. On 17.05.2018 the Opposite Party received a request from the Complainant to refund of the entire tour cost deposited by her thereby cancelling the subject tour. The Opposite Paty replied that in the event of cancellation of tour, the amount deposited shall be forfeited as per terms and conditions of the booking form. However, as a good gesture, the Opposite Party proposed to refund the balance amount of Rs.50,000/- per person plus GST vide email dated 23.05.2018. According to the Opposite Party for the proposed group tour the components like air tickets, hotel, ground transport and site seeing were pre-booked and prepaid by the Opposite Party which were not refundable in the event, if the tour is cancelled. It would reveal from the terms and conditions of the booking form. However, as a good gesture, the Opposite Party refunded an amount of Rs.2,31,900/- to the Complainant on 19.09.2018 which was accepted by the Complainant without any protest. According to Opposite Party there is no deficiency in service.
Considering the rival contentions of the pleadings, the Ld. Forum below framed following points:
- Whether the Forum has got the territorial jurisdiction to entertain the Complaint petition
- Whether there is any negligence and deficiency in service on the part of the Opposite Party
- Whether the Opposite Party has adopted any unfair trade practice
- Whether the Complainant is entitled for the relief, as prayed for
The Ld. Forum Below allowed the complaint in part answering the points in favour of the Complainant accordingly.
Now we have to decide whether the impugned judgement is sustainable in law or not.
The Complainants got a message over phone from one Subrata Mondal, a representative of the Opposite Party on 10.05.2018 to go for biometric at VFS, Kolkata Visa Application Centre, 5th floor, Rene Tower, 1842, Rajdanga Main Road, Kolkata 700107. Before going to the said address they were asked to visit office of the Opposite Party with a payment of Rs.281926/-. That fact was not disputed by the Opposite Party in written version or in their evidence on affidavit or in any other documents. On 10.05.2018 they accepted the date of complete communication in the matter of processing of Visa. The issue of processing of Visa papers was accepted by the Opposite Party on 20.03.2018. The Complainants were called to be present with the pending documents at the Visa processing office on 26.04.2018 vide their email dated 25.05.2018. The Opposite Party stated in written version, as well as in evidence on affidavit, that the Complainants had cancelled the tour on 17.05.2018, six days before departure. According to their cancellation policy, the Opposite Party is entitled to deduct Rs.85,000/- + GST 5% from their paid amount. Oral cancellation, as per their terms and conditions, is not allowed. According to them the cancellation request must be in writing from the Complainant, as observed from their cancellation policy. The Opposite Party failed to produce any single document, wherefrom it could be established that the Complainants were voluntarily willing to cancel their proposed tour of Europe Splendor on 17.05.2018. The Complainants sent their mail to the Opposite Party for refund of entire money of Rs.4,66,886/- vide their email dated 21.05.2018. The request was made by the Complainants as they had lost the hope of the said tour because of cancellation of Visa by the respective Embassy. It is argued by the Ld. Advocate for the Opposite Party that they spent a good amount for booking accommodation at abroad. But no such documents had been filed by them. It is argued by the party concerned that the Opposite Party had sent the first intimation to be present in the VISA Centre on 24.04.2018 to Sharmila Bhattacharya, one of the Complainants vide email dated 25.04.2018 at 14.46 hours. But the Opposite Party did not make such communication to the Complainant No.1, Jaba Bhattacharya, but this argument does not have any merit, because the Opposite Party communicated with Sharmila Bhattacharya on earlier occasions in respect of ensuring tour vide email dated 14.02.2018 at 02.24 P.M. and email dated 18.02.2018 at 12.25 P.M. which were accordingly forwarded to her mother. So, the plea of not having the computer in the custody of Sharmila Bhattacharya for opening the mail on 25.04.2018 is not acceptable. It is fact that the Complainants did not meet the officials of the Embassy on 26.04.2018, wherefrom they could get more information about the shortcomings about the processing of Visa. It is also observed that there were lapses on the part of Sharmila Bhattacharya who had overlooked the important mail sent by the Opposite Party. For that reason, according to the Ld. Forum Below, the Complainants were not entitled to refund the full balance amount. The Forum Below imposed a penalty to the tune of Rs.50,000/- upon the Complainants on non standard basis. As the balance amount deducted by the Opposite Party was Rs.2,34,986/- and the penalty imposed upon the Complainants is Rs.50,000/-, the actual amount to be refunded by the OP was Rs.1,84,986/- being the difference of Rs.2,34,986 and Rs.50,000/-. As per cancellation policy, if the cancellation is made 14-06 days prior to departure of tour, the cancellation charge could be Rs.85,000/- per person and GST 5%. Undoubtedly the Visas were cancelled by the Italian Consulate, Kolkata for the reason mentioned as, “The information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable.” It also argued by the Appellant that the trial court has no territorial jurisdiction to entertain the complaint, but it has not been raised before the Forum Below. So, at this stage after passing the judgement by the forum below considering the evidence adduced by the both sides, the point of jurisdiction raised by the Appellant cannot be entertained. It is also argued that before 45 days of journey the entire amount was scheduled to be paid, which was not done. Furthermore, the Visa was cancelled by the Embassy concerned and Opposite Party did not have any role to play in this regard.
It would reveal from Page 2 of Annexure – ‘D’, page 73, “Granting and refusal of Visa is the sole discretion of Embassy/Consulates due to any reason which may include inadequate documents, late submission of application. We can guide as per the general guideline provided by the Embassy but Company is not responsible for any decision taken by the Embassy or Consulate on the Visa application or any delay by the consulate in releasing the Passports.”
So we find that the impugned judgement is supported by sound reasons and it does not require any interference from this Court.
Accordingly, the Appeal is dismissed on contest. The impugned order is upheld. There shall be no order as to the costs. Order of stay, if there is any, in connection with this Appeal, stands vacated. Let a copy of this Order be sent to the Forum Below.
