Order No. 25 Dated 21/06/2010
Complainant Joydeep Banerjee by filing a petition on 31.7.07 u/s 12 of the C.P. Act has prayed for issuing direction upon the o.p. nps.1 and 2 to pay compensation of Rs.4 lakhs for arranging a tour to Rome and Pisa at the cost of the o.ps. plus compensation of Rs.2 lakhs for harassment and mental agony suffered by the complainant along with other members of his family and further issuing direction upon the o.p. to pay interest @ 12% p.a. from the date of filing this complaint till the date of payment or arrangement of a tour to Rome and Pisa and other relief or reliefs as the forum may deem fit and proper.
Complainant in the mid February, 2007 had booked European Extravaganza tour package of Thomas Cook (I) Ltd. for his wife, two daughters and for himself of 15+3 days duration starting from Rome ending at Scotland and the tour was scheduled to start from 19.5.07 and the tour was re-scheduled by the o.ps. to be started on 21.5.07 instead of 19.5.07 for the reasons best known to the o.p. and according to the revised terms o.p. was responsible for arranging air ticket e-Ex-Calcutta, visa for UK, Switzerland and other countries like Italy, France and Belgium, hotel, airport transfer, legal transport, food, insurance etc. and for this tour complainant paid full consideration money of Rs.6,32,250/- (INR 583350 + Euro 815) of the tour within the stipulated date and also submitted all the requisite documents including passport of all the members of his family, bank statement by the middle of March, 2007 in order to enable to the o.ps. to arrange for air tickets both for domestic (ex-cal and international sector) vise well in advance.
In order to ascertain the programme of tour the complainant made several attempts to call the o.p. no.1, but did not get any reply and ultimately, the complainant contacted one Mr. Susrita Banerjee of far away places (travelling agent of Tomas Cook (I) Ltd.) and she also informed that she could not contact the o.p. no.1. Complainant again and again on 9th and 11th April, 2007 called o.p. no.1 to his mobile phone and also sent e-mail, but no reply was received. After several attempts on 11.4.07 complainant was told by o.p. no.1 that his booking was being planned by Thomas Cook, Mumbai for 21.5.07 by Italia. He also informed that visa for Benelux and Swiss has not yet been applied due to the callousness and unprofessional attitude of the o.ps.
On 2.5.07 the o.ps. had asked the complainant for bank documents again for visa processing as the previous documents became more than a month late. After two weeks i.e. on 16.5.07 the complainant made several attempts to contact o.p. no.1 to ascertain the visa status, air ticket, itinerary, etc. He also sent e-mail to o.p. no.1. On 17.5.07 o.p. no.1informed the complainant that his Swiss visa could not be obtained due to some technical snag and as such, the date of tour was scheduled to start on and from 22, May, 2007 and so, the complainant and his family members were to start from Kolkata on 21.5.07 instead of 20.5.07. On 21st May morning 2007 the complainant was informed by the Indian Airlines that its passage was booked in the 5-00 p.m. flight to Delhi. The complainant on the same date in the morning called the o.p. no.1 for delivery of his tickets and he assured him that it will be delivered at his residence at 10-00 a.m. But ultimately at about 2-00 p.m. of 21.5.07 the tickets and tour documents were delivered to the complainant, but not the passports. The complainant on checking the tour documents found that on 21.5.07 night halt will be in Rome and accordingly, hotel accommodation was booked in Jolly Hotel Midas. The complainant immediately called for an explanation of o.p. no.1 about such discrepancy/mistake in the date of tour. The complainant was assured by o.p. no.1 that the entire group is delayed and the date was shifted for each location. The complainant was also assured by o.p. no.1 that the passports and visa will be handed over to him at Delhi Airport by o.p’s Delhi office.
On 22.5.07 at about 2-30 a.m. the complainant and his family members left Delhi for Frankfurt by Lufthansa Airlines and reached Frankfurt on 22.5.07 in the early morning. Complainant was booked in connecting flight no. LH 3842 of 22.5.07 (Lufthansa Airlines) from Frankfurt to Rome that was scheduled for departure at 10-50 a.m. local time. But when the complainant arrived at Frankfurt Airport he found that all flights to Rome were cancelled as there was strike by air traffic controllers and by Alitalia flight attendance, although notice of strike was given on 17.5.07. But the o.p. did not care to inform it to the complainant. complainant was told according to re-schedule that his flight will reach Rome by about 11-30 p.m. on 22.5.07 and complainant was not informed earlier and so, the complainant sent e-mail to the o.p. and the o.p. replied that the complainant and his family members will miss Rome and Pisa as the other tour members already have started the tour from 21st night. The complainant could realize that he is not only misguided, but the o.ps. have misled him by their mismanagement and unethical trade practice.
Finding no other alternative the complainant informed his brother Sandip Banerjee who is based in USA to contact Mr. Suman Bhattacharjee of Tomas Cook to see how he can visit Rome. But Sandip failed to arrange the same and accordingly, the complainant and his family members were deprived of visiting Rome and Pisa. They returned to Kolkata on 7.6.07 without visiting Rome, Vatican City and Pisa and after his arrival to Kolkata Mr. Suman Bhatterjee and Anamitra Biswas who work under the o.p. Thomas Cook admitted that there was lapse on the part of the o.ps. and promised that by 15.6.07 they will find out a way that will enable the complainant and his family members to see Rome, Vatican City and Pisa. Complainant thereafter informed about his grievance to Mr. Menan Madhaban, head of Tomas Cook (I) Ltd. and Mr. Menan asked Mr. Vijay Shetty, o.p. no.2 to do the needful and complainant therefore by his e-mail dt.15.6.07 asked Mr. Menan claiming that Thomas Cook to arrange a tour for the complainant and his family members so that they may visit Rome and Pisa at the cost of the o.p. O.p. no.2 on 28.6.07 admitted their fault and offered the complainant a voucher of Rs.50,000/- which could be redeemed any time if in future the complainant travels with the o.p. Complainant informed about his dissatisfaction and rejected the offer and demanded compensation of Rs.2 lakhs plus compensation for harassment, mental agony etc.
O.ps. have contested this case by filing their w/v on 20.12.07 and they have stated that initially the tour was rescheduled to start on 19.5.07, but since there was an ‘add on’ Scotland tour the starting date was rescheduled to 21.5.07. Complainant was made offer as he wanted free ‘add on’ Scotland to avail the same knowing that there would be in reschedule.
They have also denied that the complainant did not get proper communication feedback from the o.ps. and that on 2.5.07 o.ps. had asked for the bank documents for processing the visa. It is also their case that for getting visa for Benelux and Swiss their tour was delayed since the tickets were waiting listed and after that there was some delay in Italian Consulate due to server problem and Swiss Consulate due to their holidays.
They have specifically stated that the o.ps. have informed the complainant all the travel details and visa status and the complainant was well aware of it as it is available from annex-D. On 17.5.07 o.p. no.1 complained to inform Swiss visa could not be obtained due to some technical snag and as such, the tour will be from 22.5.07 and accordingly, complainant was asked to start from Kolkata on 21.5.07 instead of 20.5.07 evening. There was strike at Frankfurt Airport on 22.5.07 by air traffic controllers and by Alitalia flight attendance and it was not known to the o.ps. before and due to that strike the flights to Rome were cancelled and the tour programme was rescheduled and it was completely beyond the control of the o.ps. and the reschedule of flights resulted the complainant getting held in reaching Rome for which he missed a portion of the tour in Rome. For such cancellation and reschedule of tour o.ps. had to bear additional expenses of 150 Euro in order to facilitate the complainant as a good will gesture of the o.ps. and it is also only due to the strike the complainant missed his tour to Rome and Pisa and accordingly, o.ps. have claimed that there was no deficiency of service on their part and the case should be dismissed.
Decision with reasons :-
In view of the background of the cases of both the parties as described above, main points for decision are reduced to the fact that from the side of the complainant is that he paid full consideration money (fare) of European Extravaganza Tour Package for 15+3 days duration for the tour including Rome and Pisa. But is for the negligence and deficiency of service on the part of the o.ps., the complainant and his family members were deprived of visiting and enjoying tour to Rome and Pisa. Complain ant has also ascertained that the o.ps. were well in ahead aware of the strike at Frankfurt Airport and it is according to the complainant a false plea that for the strike by air traffic controllers at Frankfurt Airport all flights to Rome were cancelled. On the other hand, it is the case of the o.p. that there is no deficiency of their service and they offered the complainant for a substitute arrangement of visiting Rome in another time on payment of certain money. But the complainant did not agree to accept it. So, they are in no way responsible for the fact that the complainant along with his family members could not visit Rome and Pisa. We have gone through the evidence of both the parties and the annexures.
An admitted fact u/s 58 of Indian Evidence need not be proved. It is the specific allegation of the complainant that they were deprived of visiting Rome and Pisa only for the mismanagement and deficiency of service of the o.ps. and the claim of the complainant has been admitted by the o.ps. With regard to this point we like to point out some relevant portions of annex-P-8, a letter dt.3.7.07 addressed to the complainant by o.p. no.2 Mr. Vijay Shetty, Associated Vice President, Service Quality and Customer Care, Thomas Cook (I) Ltd. Let us now quote the relevant portion. “Having revisited the sequence of events and the circumstances surrounding inconvenience caused to you Mr. Banerjee, we once again sincerely regret your unhappiness over the tour in question. While we do appreciate your concerns, we at Thomas Cook consider service to our valued Customers of primary importance and this concept has been instilled at every training program, hence, Thomas Cook is recognized and thus established the most preferred Holiday makers not by cheating people.
We are indeed disappointed to learn your rejection of our offer a voucher of Rs.50,000/- which we feel is quite appropriate in view of the circumstances resulting the inconvenience caused to your goodself. We regret our inability to compensate as mentioned in your e-mail, however our offer stands should you wish to accept later at any time but not later than July 31, 2007”.
From this letter it is amply clear that the o.p. no.2 in unequivocal language has admitted that inconvenience has been caused to the complainant. It is also clear that they have expressed their sincere regret for their unhappiness suffered by the complainant and his family members during the tour.
It is true that they had given an alternative offer at a voucher of Rs.50,000/- which is valid up to 31.7.07. But it must be reckoned with high seriousness that why should the complainant pay further Rs.50,000/- for his visit to Rome and Pisa particularly when it is not for the fault of the complainant, but for the negligence of the o.ps. In that event we cannot blame the complainant for rejecting the offer of the o.ps.
Let us further quote the relevant portion of a letter o.p. no.2 addressed to the complainant dt.28.6.07. “It was indeed very appalling to learn the gross inconvenience you have been exposed to prior taking our European Extravaganza Tour on May 21, 2007. Without making any excuse Mr. Banerjee, we admit that this is totally unbecoming of our standards that Customers such yourself come to expect from Tomas Cook. Please accept our profuse apologies for this less than satisfactory level of service and rest assured the concerned errant staff will be dealt with severely.
Having discussed threadbare your unfortunate and regrettable experience, Mr. Banerjee, while we sincerely regret our inability in altering the circumstances of your unpleasant experience, we offer to atone, as a gesture of our regret, a voucher of Rs.50,000/- which can be redeemed anytime for your future travel with Thomas Cook. I fully understand your unhappiness and displeasure as a result of inconvenience and the distress this has caused you and hope your will accept the offer in the spirit in which it is being offered”. But contents of this letter, it is least to say a clear admission of the inconvenience caused to the complainant for which they have tendered “previous apologies”. Acceptance of an offer is up to the person, if he is willing to accept such offer. In this respect we cannot loose sight of fact that the complainant has already paid full consideration money of Rs.6,32,250/- (INR 583350 + Euro 815) for the tour in question including visit to Rome and Pisa. So, complainant cannot be blamed for rejecting the offer of paying additional voucher of Rs.50,000/- within 31.7.07. The fault entirely lies with the o.ps. and not with the complainant. This being the position with regard to re-schedule of tour well in ahead to the complainant. Ld. Lawyer of the complainant has referred to us a decision reported in IV (2004) CPJ 11. We have perused the decision and we are of the opinion that the decision is worth mentioning in the background of the present case.
We must not loose sight of the fact that Scotland tour was not free add-on tour as wanted by the complainant as alleged in paragraph 6 of the w/v. It was not a free offer, but it was a part of the package and it was mentioned in the brochure of the o.ps. Further it appears from the annexures viz. annex-P-4, that the complainant did not receive any information regarding details of the tour on 16.5.07 and the complainant had sent e-mail on 16.5.07. Complainant was never informed about the change of the tour and on the contrary the complainant was told that with other group members he along with his family will be taken to Rome. So, depriving the complainant and his family members from visiting Rome and Pisa is not only a deficiency of services, but an unfair trade practice also.
Further it is found from the record vide annex-P7 that the call of strike was not a sudden call, but on the contrary it appears from annex-P7 that the o.ps. were aware of it sufficiently before hand and definitely in order to maintain the goodwill of Thomas Cook, they ought to have informed about the date of strike to its passengers including the complainant well in ahead. Had it been so, it not only could save the goodwill of the o.p. no.1, but in addition to it could have reduced the harassment, mental sufferings and agony of the complainant.
With regard to the cassette marked ‘X’ for identification of Voice 1 of Vishal Suri, Executive, Thomas Cook, Mumbai and Voice 2 of Vijay Shetty, Associate Vice President, Service and Quality and Customer Care, Mumbai, for the meeting on 26.6.07 lot of questions arose regarding the admissibility of the CD because without the report from a competent Sound Engineer the discussion/talk recorded in the CD cannot be accepted to be true and authentic. In this respect we observed in our order no.24 dt.22.12.10 that “as the matter is highly technical and time consuming we can adjudicate and decide the case on the basis of other documents available in the record. This is an old case of 2007 and in order to avoid further delay we like to hear the argument in full of both the parties at this stage”.
We heard the argument at length of both the parties and fix date for delivery of judgment. Either of the party did not pray for any revision against the impugned order no.24 dt.22.2.10. So, it can be said with a reasonable certainty that there is no difficulty in disposing of this case on the available documents without the CD.
We have also said that the complainant has been able to prove his case and we have observed that there is not only deficiency of service, but at the same time unfair trade practice committed by the o.ps.
Hence,
Ordered,
That the petition of complaint is allowed on contest with cost against the o.p. nos.1 and 2. O.ps. are jointly and/or severally directed to pay compensation of Rs.2,00,000/- (Rupees two lakhs) only as they were deprived from visiting Rome and Pisa. O.ps. are jointly and/or severally also directed to pay litigation cost of Rs.10,000/- (Rupees ten thousand) only. O.ps. are directed to pay total amount of Rs.2,10,000/- (Rupees two lakhs ten thousand) only within forty five days from the date of communication of this order, failing which it will carry an interest @ 10% p.a. till full realization. Fees paid are correct.
Supply certified copy of this order to the parties on payment of prescribed fees.
