Per Shri P.N.Kashalkar, Hon’ble Presiding  Judicial Member:

        By this judgement we are disposing of the A.no. 439/2010  and A.no.518/2010.  Former appeal has been by org.opp.party challenging the award whereas latter appeal has been filed by org.complainants not satisfied with the meager relief granted by the Additional District Consumer Disputes Redressal Forum, Mumbai Suburban.  The Forum below while allowing the complaint partly directed the appellant in A.no.439/2010 to pay to the complainants Rs.81,000/- as compensation and RS.2,000/- as cost of the proceedings and also directed opp.party nos. 1 and 2 to refund to complainants nos. 2 and 3 an amount of Rs.12,000/- and pay cost of RS.4,000/-.  As such, both the parties have filed the respective appeals. 

        Facts to the extent material may be stated as under;

        Smt. Suvarna Navgahre wife of complainants no.1/Mr.Jagdish Navghare and complainants nos. 2 and 3 had joined Manas Sarovar trip arranged by opp.party nos. 1 and 2 between 26/05/2001 to 14/06/2001.  Opp.party no.1, is the owner of M/s. Rajshri Travel& Tours and opp.party no.2 is representative of opp.party no.1.  Complainants had paid Rs.68,000/- per person for the said tour to the opp.party.  According to complainants, while booking the said tour arranged by opp.party nos. 1 and 2, they were given assurance that along with the tourist they would provide one doctor from Tibet boundary up to Manas Sarovar and also one Chinese guide and oxygen cylinder will be provided if the tourists are required to go high altitude places.  They were also informed that if there be a need, hospital facilities also would be provided even in foreign territory.  However, according to complainants, after undergoing tours they found that there were no hotel reservations for them.  Only after their heated exchange the hotel manager gave room to them.  They also found that throughout the tour there were no proper arrangements of exchange of Indian currency to Chinese currency and vice a versa.  They suffered financial problems and losses.  They also pleaded that they had undertaken a round trip  around Kailas but neither horse or Yak was provided and therefore Shri and Smt Pitale could not undertook that portion of the tour.  Only three person could go for Kailas.  At Derophuk complainant no.2 fell unconscious and without providing any medical aid and procuring oxygen cylinder, opp.party left the passengers at that place and went ahead with the tour.   When he regained conscious, along with four passengers and one Sherpa he walked 8 hours distance and joined rest of tour party.  It was the grievance of the complainants that opp.party collected RS.3,090/- more than actual rent of the guest-house.  Complainants pleaded that on 08/06/2001 while in the tent Smt.Suvarna Navghare (hereinafter referred as Suvarna) wife of complainant no.1 was feeling uneasiness and restlessness.  She was feeling giddiness and she was feeling like vomiting sensation.  One doctor from Vishwa Hindu Parishad tourist group was called.  He gave injection and oxygen but unfortunately, Suvarna immediately expired.  It was the grievance of the complainants that since many places be visited in the course of tour were at high altitude it was the duty of the opp.party to procure medical fitness certificate and make examination of the tourist before permitting them to join the tour.  But they failed in this duty.  The complainants alleged that Suvrana died because due and proper care was not taken by the tour operator.  With the help of Chinese police and doctor on third day since the death of Suvarna, she was buried in China itself.  Chinese collected Rs.25,000/- for rendering the help but opp.party took from the complainants Rs.40,000/- and did not give any account of the said amount.  Likewise some items of deceased Survarna were collected by tour operator after taking signature of complainant no.3 but tour operator did not return the same.  Those items included cash amount, camera and other valuables.  Opp.party is liable to refund Rs.31,100/- to the complainants.  Complainants also pleaded that death certificate Suvarna was not given by the tour operator.  Ultimately, with the help of Santacruz police they could get back the same.  Other grievance of the complainants was that for this tour no insurance policy was taken by opp.party.  They assured to take the same.  If opp.party would have told the complainantss to purchase insurance policy for themselves covering them for the tour of Kailas Manas Sarovar, they would have taken the same.  Since there was no insurance cover and since Suvrana died because of negligence of opp.party, the complainants pleaded that they should be given an amount of Rs.1 Lakhs as compensation from opp.party.  After coming back to India, complainants    lodged a report with the police.  Complainants had sent a letter and notice to opp.party but opp.party did not pay any heed to the same.  On the other hand they demanded Rs.18,120/- from the complainants.  With this grievances, complaint was filed in the Forum below claiming Rs.3,05,134/-. 

        Opp.party filed written statement and contested the mater.  According to opp.party, the complaint as filed by the complainants is not tenable in law.  Complaint has been filed by the complainant no.2 in his personal capacity and as a representative of complainants nos. 1 and 3.  As such, it is not tenable.  It also pleaded that the complaint involves complicated question which cannot be decided by the District Consumer Disputes Redressal Forum in its summary jurisdiction.  Opp.party also pleaded that while booking the tour every person had made application and had put signatures on terms and condition of the tour and they are bound by the said terms.  Those terms and conditions stipulated that those who are joining tour of the opp.party are given the understanding that if there is loss of person or property of the tourist, the tour operators would not be liable for the damages on any count.  While joining the tour everybody have to pay Rs.6,000/- towards emergency fund and that amount would be disbursed at the end of the tour to pay tips to the staff, Sherpa, cook, personal guide and that amount would also utilized for meeting casual expenses.  It was also made clear to all the complainants that Kailas round is dependent upon the climatic situation obtainable and individual physical fitness and they would not be responsible if any person in unable to join the said round due to his own problems.  Opp.party therefore pleaded that complaint is false, frivolous and it should be dismissed with costs. 

        Upon hearing the Ld.Advocates for both the parties and after perusal of documents and affidavits placed on record, Forum below gave a finding that there was deficiency in service on the part of the opp.party in not giving proper and immediate medical treatment and carrying oxygen cylinder with them and because of their negligence in taking due and proper care of Suvarna, she lost her life on 08/06/2001 itself.  Forum below also noted that services of doctor were not made available immediately by the tour operator nor she was rushed to any medial hospital with the help of local agent of tour operator.  So, there was deficiency in service on the part of tour operator.  Forum below also noted that deceased Suvarna had not given any medical fitness certificate before joining the tour and it was fault on the par of tour operator that they had not insisted for medical fitness certificate and without bothering to the state of health of all the three complainants, they were allowed to join the tour.  In fact, they should have been disqualified by the opp.party from joining the tour since they had not produced the medical certificate from the doctor or recognized hospital.  So, there was utter negligence on the part of tour operator in not insisting for that certificate, they were thus guilty of deficiency in service which ultimately led to death of Suvarna.  Forum below also held that opp.party had not returned the valuables of Survarna though they had taken signature of complainants for getting those valuables returned from Chinese authorities.  Forum below also noted in its order in para 15 that amount collected for meeting casual expenses by tour operator were not utilized by tour operator to give proper help to deceased Suvarna  when she needed all sort of help since she had became critical on 08/06/2001.  So not utilizing the amount earmarked for casual expenses or unforeseen event also amounted to deficiency in service and therefore the Forum below allowed the complaint partly and directed opp.party no.1 to return Rs.81,000/-  (Rs.75,000/- towards compensation + Rs.6,000/- for unforeseen expenses fund) and cost of Rs.2,000/-.  Forum below also directed the opp.parties  to refund to complainant nos. 2 and 3  an amount of Rs.12,000/- and pay cost of Rs.4,000/- to them. As such, both the parties as mentioned above have filed these two appeals.

        We heard submissions of Adv.Mrs.Anita Marathe for complainants and Adv.Mr.S.B.Prabhavalkar for opp.party. 

        We are finding that Ld. District Consumer Disputes Redressal Forum  has clearly considered the case of both the parties in proper prospective.  Ld. District Consumer Disputes Redressal Forum pointed out the deficiencies in service on the part of tour operators.  Forum below particularly noted the fact that the tourists were given to understand by tour operators that on the tour there would be one doctor and one Chinese guide throughout the tour.  They were given to understand that they would be keeping with them oxygen cylinders to be provided to the tourists in case of emergency.  They were also given to understand if there be any need they would be provided medical help though their local contacts and when these were the assurances given by the tour operators, it was found that no reservation was made at Gangjong at China for the complainants and only after they had heated discussions with the hotel management they made available a room for the complainants.  The grievance of the complainants was also in respect of lack of exchange facilities for exchanging the Indian rupee into Chinese and vice-versa.  Forum below also noted that Smt Pitale and Navghare could not go for Kailas round because horse or Yak were not provided to them  Out of eight persons three persons  could complete the said round.  Complainants no.2/ Mr.A.W.Pitale fell unconscious while undertaking the said  Kailas round.  No medical treatment was given to him and therefore he was left at that place and others were taken for completion of Kailas round.  Forum below also held that in respect of guest-house charges excess rent of Rs.3090/- was recovered from the complainants.  Most prominently there was deficiency in service on the part of tour operator in respect of Suvarna who was feeling uneasiness on 08/06/2001.  Froth was oozing out from her mouth and she was feeling vomiting all the while.  The tour operator did not bother to procure doctor or to give any other medical help.  The oxygen cylinders were not immediately made available. A doctor from Vishwa Hindu Parishad contingent was called.  Smt Suvarna expired in the tent itself on 08/06/2001. In respect to death of Smt Suvarna the tour operator cannot avoid the blame and blot.  They were guilty of deficiency in service for not providing the oxygen cylinders and proper medical treatment to Smt Suvarna.  It is true that no person is immortal but tour operators when they are conducting tour and when they have a lot of experience of conducting such tours, it is their duty to keep medical officer ready at call at all  places where tourist would be going while on the tour.  It also their duty to make available the oxygen cylinders when most of the places of this particular tour are high altitude places where an ordinary person would require oxygen cylinder. The Forum below also found fault with the tour operator in not asking or collecting from the tourist medical fitness certificate before permitting them to join such tour.  In fact, in the brochure itself it is mentioned that every person joining the tour should tender the medical fitness certificate before tour.  Had they taken care to see if these persons particularly Smt Suvarna was not having medical fitness certificate, then they should have asked her to not to join the said tour and should have refunded the tour charges.  But allowing her to join the tour without her own fitness certificate is something which is misdemeanor on the part of tour operator and in the present case Smt Suvarna lost her life since she could not get medical aid immediately.  Likewise other complainants suffered good amount of ordeal in getting buried Smt Suvarna and not getting back her belongings.  Forum below also noted that Chinese guide charged Rs.25,000/- for burying her body whereas tour operator collected Rs.40,000/-  from the complainants and did not render accounts.  Some of valuables were not returned to the complainants at all which were belongings of the Smt. Suvarna.  Ultimately, with the help of local police of Mumbai some of belongings of deceased Suvarna were procured by the complainants from tour operator.  Even tour operator were not ready to immediately supply or handover the death certificate of Smt. Suvarna which was ultimately obtained by the complainants through the intervention of Santracruz Police.  Forum below also noted in its judgement that tour operator had not taken insurance policy of those persons who had joined the tour.  So they should have asked at least the person joining the tour to take the overseas insurance policy for their own safety and benefit.  Nothing of this sort was done by the tour operator and therefore, considering all these lapses on the part of tour operator, Forum below appears to have rightly allowed the complaint partly and directed the opp.party nos.1  and 2 to jointly and severally pay Rs.81,000/-( Rs.75,000/- towards compensation + Rs. 6,000/- for unforeseen expenses fund) and cost of Rs.2,000/-. 

In the circumstances, we are finding that appeal filed by the appellant on behalf of the M/s. Rajshree Travels & Tours is devoid of any substance.  The order passed by the Forum below is just and sustainable in law.  We are finding that no legal defects in the order passed by the District Consumer Disputes Redressal Forum.  Therefore appeal preferred by the org.opp.party bearing no. No. 439/2010 is liable to be rejected.

As regards the A.no. 518/2010 of org.complainants, we are finding that they have filed this to get enhanced compensation but we are of the view that compensation awarded by the Forum below is appearing to be just and equitable and it is appearing to be proper and we are not inclined to allow their appeal for the simple reasons that they had already enjoyed the tour though they had faced some inconveniences for which the Forum below in its judicial wisdom had rightly granted compensation befitting to their inconveniences and mental torture.  Thus, we are finding that appeal filed by the org.complainants is also required to be dismissed.

Before parting with this judgement, we would like to mention here that the tour operators like opp.party like M/s. Rajshree Travel & Tours, while undertaking tours of this nature must procure the medical fitness certificate of all the persons joining the tour.  It is in their interest that they should procure the medical fitness certificate when they are conducting tour covering Europe, China, Kailas ManSarovar etc.  Secondly, they must take proper and due care to make arrangement of medical officer and doctor at every place where they are taking these tourist during the whole period of tour.  When senior citizens are taken for tour lasting for 15-20 days, it is the duty of the tour operators to make available for the tourists doctor or medical officer in case of emergency.  It is expected of the tour operators that they should make arrangement of oxygen cylinder for the needy persons immediately and forthwith may be at their expenses.  Fourthly, we would to advice the tour operators that they should take insurance of all the passengers whom they are taking on tour with them.   Insurance cover surely will be helpful for them and also to the passengers if anything wrong happens as had happened in present case.  They should make proper reservations for hotels for all the passengers so that passengers joining the tour would be comfortable at night.  Tourist should not be treated as hens are stuffed in transport vehicle for carrying them to the slaughter house.  This is minimum arrangement all tour operators are expected to make before conducting any tour.  We hope and trust all tour operators of Maharashtra henceforth will follow these guidelines while conducting the tour.  In the result, we pass the following order:-

                                :-ORDER-:       

1.           A.no.439/2010 filed by the org.opp.party stands dismissed.

2.           A.no.518/2010 filed by the org.complainants stands dismissed.

3.           Parties are left to bear their own costs,

4.           Copies of the order herein be furnished to the parties as per rule. 

(S.P.Lale)                          (P.N.Kashalkar)

Member                     Presiding Judicial Member

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