BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE

Dated this the 3^rd January 2017

   PRESENT

     SRI. VISHWESHWARA BHAT D   : HON’BLE PRESIDENT

     SRI. T.C. RAJASHEKAR                 : HON’BLE MEMBER

ORDER IN

C.C.No.341/2012

(Admitted on 21.11.2012)

Vasudeva Boloor,

S/o. Achappa Anchan,

Aged about 75 years,

R/at Thingalaya Compound,

Boloor, Mangalore.

                                                                         ….. COMPLAINANT

(Advocate for the Complainant: Sri BNK)

VERSUS

Johna s Travel House,

Little Flower,

Balmatta Road,

Mangalore   575 002.

                                                          ….....OPPOSITE PARTY

(Advocate for the Opposite Party: Sri. KK)

ORDER DELIVERED BY HON’BLE MEMBER

SRI. T.C. RAJASHEKAR:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain relief opposite party to refund of Rs.20,455/ the price of the ticket with interest at the rate of 18% p.a. from the date till date of realization, to pay compensation of Rs.4,50,000/ towards damages mental agony and pay a sum of Rs.5,000/ towards cost of the proceedings and cost of the complaint.

2.  In support of the above complainant Mr. Vasudeva Boloor filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents not marked.  On behalf of the opposite party Mr. Tracy Johana (RW1) Proprietor also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked as Ex.R1 to R6 detailed in the annexure here below.

The brief facts of the case are as under:

   On perusal of the complaint and the version of the parties we understood this dispute is with regard non-refund of air ticket charges on cancellation of UAE tour because of not getting VISA by the Opposite party. The complainant alleges that along with another 41 members he also paid a sum of Rs 20455/ on group tour arrangement for UAE to the Opposite party. But the opposite party could not able to arrange for VISA to the complainant hence his tour cancelled and even the Air ticket charges not refunded on cancellation of the tour. The Opposite party contends that the complainant submitted the required documents belatedly and also the UAE authorities have not issued the VISA on the ground that the complainant is the aged person and he is not accompanied with his close family members. It is also contended that the issue of VISA is the prerogative of the UAE authorities and it is not in opposite party s hand. Due to late cancellation of the Air ticket as per cancellation condition only 10% of the fare is refunded and the same has been tendered to the complainant which is not accepted by him. It is also contended that the complainant is not a consumer as there is no direct contract between opposite party and the complainant as there is person called Lokanath Bolar who approached us for the group tour and all communication is routed through the group leader Mr Lokanath Bolar. These are being the facts in resolving this  dispute we consider the following

POINTS FOR ADJUDICATION

We have carefully examined the evidence of the parties and the documents produced. The admitted facts are,  the booking of tour to UAE in  group  wherein the complainant is also one of the traveler,  the booking of ticket to UAE on 17.04.2012 for the group, the non issue of VISA to only the complainant on the ground of age, the cancellation of the air ticket of the complainant. What is denied is the complainant’s contentions that he has produced the required documents for the issue of VISA well in advance, opposite party negligence in getting VISA, the complainant as a consumer, the delayed information of cancellation to the complainant? It is denied by the complainant the Opposite party contention that the refund given on cancellation of ticket as 10% amounting to Rs 2034/ and tendering of the refund to the complainant. At this juncture we are of the opinion that the following points are to be adjudicated.

1. Whether the complainant is a consumer under the Consumer Protection Act 1986?
2. Whether the complainant proves the deficiency in service from the Opposite party?
3. Whether the complainant is entitled for the relief prayed for?
4. What order?

     On considering the evidence and the documents and notes and hearing the rival parties we answered the above points as under.

1. In the affirmative.
2. In the negative.
3. In the negative.
4. As per final order.

REASON

POINT NO 1: The complainant produced the EX C1 the Air ticket dated 17.01.2012 issued to him by the Opposite party the name of the passenger is Mr Vasudeva Bolar which established that he is the consumer for having booked ticket. However the Opposite party denies that he is a consumer on the ground that there is no contractual obligation between him and the complainant because all the negotiations and dealing were made through one Mr. Lokanath Bolar and there is no direct relation between him and the complainant contention is not acceptable.  It is admitted by the Opposite party that the Mr. Lokanath Bolar is the person dealing as a group leader and the complainant is also one among the group. The Opposite party contends that he has tendered refund of the amount on cancellation of the Air ticket of the complainant.  Hence we hold the complainant is the consumer and the Opposite party is the service provider and the point no 1 in the affirmative.

POINT NO 2 & 3: The complainant’s contention is he has booked tour program under group tour with the Opposite party and paid Rs 20455/ towards Air ticket fare. But the Opposite party cancelled his tour on the ground that the VISA not issued and also informed him belatedly and he has to go to airport and comeback.   Also not refunded the amount on cancellation of the Air ticket and hence there is deficiency in service on the part of the opposite party. To prove his  case he has produced the Air ticket copy and the EX C2 the Package program details issued by the Opposite party. These documents prove only the booking of ticket and the tour program but not negligence and the deficiency in service. The defense of the Opposite party is, after admitting the booking of Air ticket and the tour program, contends that the tickets were booked well in advance on 17.04.2012 but the group leader Mr. Lokanath Bolar provided required documents for obtaining VISA very late and produced the document EX R1an email correspondence dated 23.06.2012 given the details of the persons whose documents not yet received.  Even though it is addressed to requested to re submit the VISA application of the complainant and the same has been resubmitted on 01.07.2012 but on the same day it is rejected again and by that day night itself the group leader was informed about the facts and produced EX R5 the email date 02.07.2012 to support his case in which it is stated as updated to  you yesterday by telecom this document show till the last moment the Opposite party tried to get the VISA for the complainant. The Opposite party produced EX R2 the terms and conditions for issue of VISA and stated that the issue of the VISA is the prerogative of the UAE government and even they can reject VISA application without assigning the reason hence it is not in his hand to get VISA. The Opposite party is not liable for non issue of VISA. Because attempt of get VISA till the last moment the Air ticket could not be cancelled before 24 hours. As per jet Airways terms if ticket is cancelled later than 24 hours left for the flight only 10% of the amount of Air ticket will be refunded. As such an amount of   2034/ received as refund and the same has been tendered to the complainant through cheque which is refused by the complainant and produced EX R3 client settlement issued by the Akbar Travels of India (P) Ltd. It is seen from this record that an amount of  Rs 2034/ given credit in the name of the complainant to the Opposite party. The Opposite party also produced the EX R4 a cheque drawn in the name of the complainant for an amount of  Rs 2034/

2.     Apart from the above the complainant had produced EX C2 the Package program details issued by the Opposite party. In point no 9 the Opposite party has taken responsibility of getting VISA but it is subject to immigration approval. It is established that the Opposite party responsibility of getting VISA is subject to approval immigration. It also noticed from the records and interrogatories that Mr. Lokanath Bolar is said to be and accepted to be the group leader and all correspondence and submitting of the documents through the group leader only. So it is not clear chronologically the submission of complainant s documents to the group leader by group leader to the Opposite party, submission of application for VISA and rejection information communicated to the complainant. The complainant could have examined the group leader Mr. Lokanath Bolar as opposite party contended. In the file we have seen a list of complainant witness in which the Mr. Lokanath Bolar name is mentioned as witness. But surprisingly the complainant not opted for examining him in spite of opportunity given on 12.07.2013 till 07.08.2013 for further evidence. As he is the accepted and admitted group leader he should have been witness and the complainant should examine him.  From these discussion and referred documents we are of the opinion that the complainant has not proved the negligence and the deficiency in service on the part of the Opposite party whereas the Opposite party has proved his case of no liability on his part. Hence we answered the point no 2 in the negative and also point no 3 in the negative.

POINT NO 4: in the light of the above discussion and the adjudication of the points we delivered the following

ORDER

                  The complaint is dismissed.                                                                                                                                  

     Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 9 directly typed by member revised and pronounced in the open court on this the 3^rd January 2017)

                 MEMBER                                          PRESIDENT

 (SRI. T.C. RAJASHEKAR)           (SRI. VISHWESHWARA BHAT D)

 D.K. District Consumer Forum              D.K. District Consumer Forum

  Additional Bench, Mangalore                Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Vasudeva Boloor

Documents marked on behalf of the Complainant:

 Nil 

Witnesses examined on behalf of the Opposite Party:

RW1: Mr. Tracy Johana, Proprietor

Documents produced on behalf of the Opposite Party:

Ex.R1: 23.06.2012 : Copy of mail Communication for non receipt of Passport copies in the required format till  23^rd June 2012

Ex.R2:                 : Copy of the UAE Visa application form which specifies that granting or refusing of any visa is purely

Ex.R3:                 : Copy of the refund received on Mr. Vasudeva Boleer s ticket

Ex.R4: 14.08.2012 : Original cheque which was refused by the  Complainant

Ex.R5:                 :  Xerox copy of mail sent by suman sequeira of  Royal Arabia Tours to the opposite party

Ex.R6:                 :  Copy of the refund statement           

Dated:  03.01.2017                                          MEMBER