PER MR.B.S.WASEKAR, HON’BLE PRESIDENT

1)                The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986.  According to the complainant, he has booked Popular Family Tour for Austria Swiss Paris for 12 days and 11 hotel nights for himself, his wife, daughter and son with the O.P.No.1.  He paid Rs.2,90,180/- in cash towards total tour cost and Rs.3,39,900/- towards Forex request for EUR currency. The O.P.No.1 issued receipts for it. Thus, he paid total amount of Rs.6,38,314/- to the O.P.No.1. The complainant is a sitting Corporator of Thane Municipal Corporation.  He is busy with his activities.  However, he had arranged tour programme with family members to enjoy their holidays. The complainant submitted travel documents 20 days prior to the tour programme i.e. 22^nd May, 2005.  However, from record, it appears that the O.P. deposited travel papers for visa on 15^th May, 2012.  There was no possibility of getting visa on or before 22^nd May, 2012 thereby the complainant and his family members missed journey for four days for no fault of complainant. The complainant has to waste four days at Mumbai therefore they are entitled for the refund of amount paid by them.  The opponents failed to obtain visa within specified period. The complainant used his influence with the Austrian Consulate and requested them for urgent visa.  The complainant was asked to pay additional amount of Rs.70,000/- for air fair. The complainant also paid additional amount of Rs.27,020.82/- towards traveling (Taxi) expenditure from Zurich airport to hotel. Though, the tour was for 12 days and 11 hotel nights, it was curtailed to seven days and six nights.  Thus, there is deficiency in service of the opponent.  The complainant wrote letter dated 11^th June, 2012 to the O.P. asking them to refund the amount of Rs.70,000/- and Rs.27,020/- and to compensate him for not utilizing tour of four nights and four days.  The complainant received cheque for the amount of Rs.24,770/- from the office of the O.P.  The complainant showed unwillingness to accept the said cheque.  He instructed his advocate to return the cheque and accordingly it was returned to the O.P.  As there is deficiency in service on the part of the opponents, the complainant has filed this complaint for refund of amount of Rs.70,000/- and Rs.27,021/-.  He has also claimed refund of amount of Rs.6,38,314/-. He has claimed compensation of Rs.5 Lakhs towards mental torture and harassment.  He has claimed legal notices charges Rs.10,000/- and cost of this proceeding Rs.50,000/-.

2)                The opponents appeared and filed written statement.  It is admitted that the complainant booked Popular Family Tour for himself and family members. It is submitted that due to busy schedule of the complainant, he has not furnished visa papers in time thereby his visa was not approved.  The O.P. suggested the complainant to postpone the tour but the complainant refused and joined the tour four days late.  All the allegations made by the complainant are denied. There is no deficiency in service on the part of the opponent. The complainant submitted visa papers on 12^th May, 2012. It was late therefore the O.P. suggested the complainant to go same tour in future but the complainant refused as his relatives and friends were in the same tour. The complainant requested the O.P. to allow to join him in the middle of the tour.  On his request, visa papers were forwarded and visa was obtained four days late.  Cheque of Rs.24,770/- was sent to the complainant on humanitarian ground and on goodwill basis.  There was delay in visa as papers were submitted late by the complainant.  Therefore, the O.P. is not liable to refund the amount. As per terms and conditions of the tour, the O.P. assists to obtain visa by forwarding the paper to the Consulate.  It is discretion of the concern authority to grant visa.  The O.P. can not compel to grant visa.  There was no fault on the part of the O.P. therefore the complaint is liable to be dismissed with cost. 

3)                After hearing both the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

4) As to Point No.1 & 2 :- It is not disputed that the complainant booked the tour with the O.P. and paid the amount.  The O.P. issued receipts for it.  It is also not disputed that there was delay in visa therefore the complainant could not join the tour from the beginning.  He joined the tour four days late.  The dispute is about submission of visa papers.  According to the complainant, he submitted the visa papers with the O.P. 20 days prior to the tour programme i.e. 22^nd May, 2012.  On the other hand, it is the case of the O.P. that the complainant submitted visa papers on 12^th May, 2012 i.e. 10 days before.  The same were submitted immediately on next working day.  There is no itinerary on record.  The complainant has not given the details of tour programme.  In ordinary course, the complainant must have got itinerary showing tour programme on payment of amount.  There is word against word about the submission of visa papers.  There is no evidence on record showing the exact date of submission of visa papers with the O.P.  In order to decide the fault of the parties, evidence should be there. The complainant has filed this complaint and requested this Forum to believe word without evidence.  On the other hand, it is the specific case of the O.P. that the complainant submitted visa papers on 12^th May, 2012.  There was holiday on 12^th and 13^th May, 2012. Therefore, visa papers were submitted on next working days i.e. 14^th May, 2012 before the Embassy.  The complainant has stated that he joined tour after four days but he has not given details of it.  He has also not stated from where he joined the tour. Thus, proper evidence is not on record to decide the fault of the parties. Under this situation, we are placing reliance on the judgment of Hon’ble Supreme Court in the case of Ravneet Singh Bagga –Versus- M/s. KLM Royal Dutch Airlines & Anr. reported in (2000) 1 SCC 66. In para 6 of the judgment, the Hon’ble Supreme Court has laid down as under :

The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.  The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent.  The deficiency in service has to be distinguished from the tortuous acts of the respondent.  In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service.

In view of the abovesaid law laid down by the Hon’ble Supreme Court the burden of proving the deficiency in service is upon the person who alleges it.  In the instant complaint before us the complainant is alleging that there was delay due to negligence of the opponents in submitting visa papers to the authority.  The complainant has not produced any evidence when he submitted the papers to the O.P.  He has not produced itinerary to show the tour details.  He has also not clarified from where he joined the tour.  The complainant has merely produced the bills and receipts.  There is no dispute about the booking and payment. If there was no visa on the day of starting tour, the complainant was at liberty to cancel the tour and claim the refund.  According to the O.P., the complainant insisted therefore he was allowed to join the tour after four days.  There is no evidence on record to show the protest of the complainant.  Therefore, the defence taken by the opponent will have to be accepted.  In view of the abovesaid law laid down by the Hon’ble Supreme Court, burden lies on the complainant to prove his case.  The complainant failed to prove his case.  Therefore, he is not entitled for the relief as prayed. 

5)                The learned advocate for the opponents has submitted that as per terms and conditions, the opponents are not liable to refund the amount.  Copy of terms and conditions in small print is produced by the opponents. It is not clear whether the copy of it was given to the complainant and the terms and conditions under it were explained to the complainant. However, as discussed above, there is no evidence on record in favour of the complainant. 

6)                It is true that the complainant could not join the tour from the beginning and he joined it four days late.  As discussed above, there is no evidence to point out the negligence of the opponent.  According to the learned advocate for the O.P., the O.P. has every sympathy for the complainant but mere sympathy is not sufficient to allow the claim.  It is true that mere sympathy is not sufficient to allow the claim.  For this purpose, we are placing reliance on the judgment of the Hon’ble Supreme Court in the case of Inter Globe Aviation Limited –Versus- N.Satchidanand, reported in (2011) 7 SCC 463.  In para 39 of the judgment, the Hon’ble Supreme Court has laid down as under :

Consumer Fora and Permanent Lok Adalats can not award compensation merely because there was inconvenience or hardship or on grounds of sympathy. What is relevant is whether there was any cause of action for claiming damages, that is whether there was any deficiency in service or whether there was any negligence in providing facilitation. 

In the instant complaint before us also, evidence is not sufficient to prove the allegations made by the complainant. Therefore, the complainant is not entitled for the claim merely on the basis of sympathy. 

7)                Admittedly, the complainant and his family members enjoyed the tour though not completely.  The complainant has raised the grievances after enjoying the tour and not in the beginning. Once he had enjoyed the tour with the family members he is not entitled to claim the refund of entire amount.  The O.P. has also spent the amount for the tour of the complainant and his family members. Therefore, the claim of the complainant for refund of entire amount is unreasonable. 

8)                Thus, there is no evidence on record to show the deficiency in service on the part of the opponents. Therefore the complainant is not entitled for the relief as prayed. Hence, we proceed to pass the following order.

ORDER

1. Complaint stands dismissed.
2. Parties are left to bear their own costs.
3. Inform the parties accordingly.

Pronounced on 4^th September, 2014