Per Mr.H.K.Bhaise, Hon’ble Member
1) The complainants states that they are law and peace abiding citizens of India, residing at the address given in Pune. The complainants states that the O.P.No.1 is a public limited company registered under the Companies Act, 1956 and is engaged in business of tourism and hospitality and works as a tour operator. The O.P.No.2 is one of the preferred sales agents presently known as Paradise Tours. The complainants wished to go on holiday trip to Europe and after enquiring several travel agencies for the best deals they selected and booked ‘Popular Europe’ Tour scheduled on 1st May, 2012 to 18th May, 2012 for themselves with the O.P.No.2, which is sales agents of Kesari Tours Private Limited, i.e. the O.P.No.1. On 1st December, 2011 and the total package cost of the Europe Tour was of Rs.4,60,329/-. The complainants paid the consideration of the tour in five installments during December-2011 to April, 2012 as follows
i) Rs.70,000/- (Rs.Seventy Thousand Only) under Receipt No.4955 dated 1st December, 2011
ii) Rs.1,33,997/- (Rs.One Lakh Thirty Three Thousand Nine Hundred Ninety Nine Only) under Receipt No.5406 dated 30th March, 2012
iii) Rs.54,705/- (Rs.Fifty Four Thousand Seven Hundred & Five Only) under Receipt No.5405 dated 30th March, 2012
iv) Rs.1,99,911/- (Rs.One Lakh Ninety Nine Thousand Nine Hundred & Eleven Only) under Receipt No.5407 dated 30th March, 2012
v) Rs.1,716/- (Rs.One Thousand Seven Hundred Sixteen Only) under Receipt No.548 dated 10th April, 2012
The complainants received a letter dated 12th April, 2012 from the O.P.No.1 confirming the flight and hotel details of the Europe Tour scheduled at 1st May, 2012. The complainants preferred the said tour so that they could make prior arrangements with regards to their business and personal matters. Their two kids were supposed to have their vacations in the month of May and their school was to reopen in first week of June. Accordingly, they made all prior plans and preparations for the said trip scheduled on 1st May, 2012. However, on 30th April, 2012, when the complainants had left the residence in Pune for Mumbai for their scheduled ‘Popular Europe’ trip dated 1st May, 2012, they received a call from the O.P.No.1 that the passport of complainant No.2 Mrs.Uma Sachin Agarwal had been lost by them. Hence, the trip had to be postponed to an indefinite date. The complainants were worried and tensed about the loss of passport of the Complainant No.2 and the O.P.No.1 could not give proper reply for the careless incident and disappointed them. The O.P.No.1 than asked the complainants to make notarized affidavits and a police complaint for loss of passport by Kesari Tours Private Limited on 4th May, 2012. They had to visit passport office for issuance of new passport, they even had to apply for fresh UK Visa of Complainant No.2. Instead of spending their time on a awaited trip, they had to run around from pillar to post to secure new passport and getting fresh UK Visa. The complainants had to face constant stress and tension. The Complainant No.1 also was facing acute problem, as he is running a highly competitive business and had managed to obtain sometime to go on a vacation to relieve his stress and relax. But instead he had to sit idle. He did not schedule any business meetings or appointments during the said trip. They also had to face humiliation and embarrassment from friends and relatives whom they had informed about the expensive “Popular Europe” Tour. The complainants states that they made prior arrangements for their children at their friends place as it was their vacations, but due to postpone of trip, had to cancelled the children’s plan. The complainants had to face snide remarks of people as they were still in their house rather than on their Europe Trip. The complainants then subjected to intense mental agony.
2) The new passport was received on 19th May, 2012. The complainants enquired with the O.P.No.1 as to how they would rectify their negligence of losing the passport, on which the O.P. assured the complainants to adjust them in new trip to Europe in the month of June-2012. The complainants had refused to accept the trip in June-2012 to O.P.No.1 as it was not possible to accept trip in June-2012 and asked the opponents to cancel their trip and refund their money. But the O.P.No.1 refused to refund their money and hence forced to attend the trip in June-2012. The complainants shocked and stunned that were informed on 28th May, 2012 about scheduled trip on 29th May, 2012, just one day before, and had to accept without any choice. The complainant No.1 had to cancel all appointments from 29th May, 2012 to 16th June, 2012 even had to suffer business losses due to delayed trip. The complainants even had to make other new arrangements for their kids to stay and to appoint professional care taker. The children being young and naïve were angry and upset with their parents i.e. complainants as they were being left behind with a caretaker lady unknown to them. For caretaker they had to shell out an expenses of Rs.5,000/- and in addition Rs.3,000/- for food expenses of the caretaker. The complainants had sent an email to O.P.No.1 to discuss the amount of compensation for inconvenience, mental agony, harassment and losses borne by them. But there was no positive response from any of the persons of Kesari Tours Private Limited. Finally, the O.P.No.1 offered Rs.10,000/- per person by way of compensation to the complainants for a trip which had cost them about Rs.4,70,000/-. The complainants refused the quantum of trivial compensation. Finally, on the promise of the O.P.No.1 to discuss the matter with them after the said trip, they agreed to take trip on 29th May, 2012 and arrived back in Mumbai on 16th June, 2012.
3) The complainants sent a legal notice dated 6th July, 2012 to the O.P.No.1 & 2 and on 28th July, 2012 they received a reply dated 20th July 2012 from advocate of the O.P.No.1 wherein they denied and refused to compensate the complainants. The complainants states that the O.P.No.1 have not only acted negligently and carelessly but is also guilty of serious dereliction of duty for loosing passport which was in their custody. They have also committed breach of trust and breach of promise by cancelling the “Popular Europe” tour scheduled on 1st May, 2012 to 18th May, 2012. On account of the abovesaid dereliction of duty and failure and negligent and breach of promise on the part of the O.P.No.1 the complainants have suffered loss of time and money as well which the O.P.No.1 is liable to compensate to the complainants.
4) In view of the above facts and circumstances the complainants prayed as under
A) To pass order of compensation against the opponents directing them to pay compensation of Rs.5,00,000/- with interest at the rate of 18% per annum from the date of filing of the complaint till actual payments and realizations therefor towards mental and physical harassment, breach of promise and also loss of profit suffered by the complainant No.1 due to deficiency in services rendered by the O.P.No.1
B) The cost of this litigation to be paid for the sum of Rs.10,000/-
5) In reply, the opponents say that at the outset the complaint is baseless and has been filed without any reasonable cause. The complaint is filed with sole motive of tarnishing image of the O.P. and is bias against the opponents and denied each and every allegation made in the complaint. The opponents say that the complainants have booked “Popular Europe” tour with the O.P. commencing from 1st May, 2012 to 12th May, 2012. As passport of the Complainant No.2 was missing before tour the complainants were unable to attend the said tour and offered them for new tour. The opponents arranges and helped the complainants to get duplicate passport free of charge. The O.P. says that the complainants was unable to go to “Popular Europe” tour as passport was missing but the O.P. offered complainants new tour from 29th May, 2012 to 16th June, 2012 and complainants willfully accepted the said new tour without any resistance. The complainants attended and enjoyed and fully satisfied with it. Now complainants filed this complaint asking compensation for non attending earlier tour claiming compensation for suffering for mental harassment and loss of business. The O.P. says that there is no deficiency in service committed by the O.P. and complainants filed this complaint only with intention of grabbing money from the O.P.No.1. The opponents says that it is true that as passport of Complainant No.2 was missing they were unable to attend the tour and same was informed in advance to the complainants. The opponents denied the allegations made by the complainants that the complainants required to run around from pillar to post to secure a new passport and getting a fresh UK Visa. The opponents arranged and helped the complainants to get duplicate passport and provided all legal help also arrange lawyer and preferred the required affidavit, provided all help and expenses to obtain duplicate passport free of charge. The opponents say that they never compel the complainants to join new tour from 29th May, 2012 to 16th June, 2012. The opponents denied that they informed the complainants about new tour to be scheduled on 29th May, 2012. The complainants was informed well in advance about the new tour. The opponents denied that they told complainants that if they not attend the new tour they will not give any refund. It is also true that complainants send legal notice to the opponents and the same was replied by the opponents.
6) The O.P. denies that they acted in any careless and negligence manner and they committed deficiency in service. The opponents says that missing/lost passport is an accident unforeseen and unfortunate event and the opponents is not intended for the same but they provided full help and obtained duplicate passport and provided fresh new tour to them and acted in a best possible manner. The opponents says that there is no deficiency in service caused by the opponents. There is no merit in complaint. The complainants is not entitled for any compensation, cost or relief as claimed and complaint is required to be dismissed with cost. Both the parties have filed their affidavits and written notes of arguments.
7) After hearing both the parties and after going through the record, following points are arise for our consideration
POINTS
Sr. No. | Points | Findings |
1) | Whether there is deficiency in service ? | Yes |
2) | Whether the complainants were put to stress, mental agony and loss of time ? | Yes |
3) | Whether the complainant is entitled for the relief as claimed ? | Yes |
4) | What Order ? | As per final order |
REASONS
8) As to Point No.1 to 3 :- It is admitted by the opponents that the complainants have booked “Popular Europe” tour with the opponents commencing from 1st May, 2012 to 12th May, 2012. It is also admitted by the opponents that the passport of the Complainant No.2 was lost by the O.P.No.1 and hence the complainants were unable to attend the said tour. According to the opponents the opponents arranged and helped the complainants to get duplicate passport and provided all legal help and lawyer to obtain duplicate passport free of charge. After getting new passport the opponents have offered new tour commencing from 29th May, 2012 to 16th June, 2012. According to the opponents the complainants willingly accepted the said new tour and the complainants attended and enjoyed the new tour. After enjoying new tour, the complainants have asked for the compensation for inconvenience, mental agony, harassment and losses borne by them due to cancellation of first Europe Tour scheduled from 1st May, 2012 to 12th May, 2012. According to the complainants, the opponents offered Rs.10,000/- per person by way of compensation to the complainants but the complainants refused the quantum of such trivial compensation amount.
9) The points of deficiency or conflict between the complainants and the opponents are mostly as under.
The passport of the Complainant No.2 was lost by the opponents and they did not informed the complainants upto 30th April, 2012. The complainants had left their residence from Pune and were approaching Mumbai for the scheduled tour dated 1st May, 2012. This is definitely a negligence of service by the opponents. The opponents could have informed the complainants about the loss of passport in advance so that the complainants would have postponed their other preparations and arrangements made for the tour. Last moment information of postponement of tour due to loss of passport was also shocking to the complainants and put them in intense stress and mental agony. Moreover, the complainants could have saved their loss of time. Thus, there is lack of service on the part of the opponents.
According to the opponents, they have helped the complainants to obtain new passport free of cost and offered next first tour to Europe. But the complainants were already put to harassment, agony and loss of time by careless act of the opponents by missing the passport of the Complainant No.2. Loss of passport of the opponents can not be treated as accident or unseen, unfortunate event and therefore the complainants are entitled for compensation due to lack of service and negligence on the part of the opponents.
Thus, the complainants were put to inconvenience due to negligence and manual mistake by loosing passport by the opponents. It is also affirmed that by delaying to inform the complainant of postponement and cancellation of tour upto eleventh hour by the opponents has caused lot of stress, tension, mental agony and loss of time, loss of arrangements made by the complainants for the said tour and humiliation and therefore the opponents are liable to pay compensation to the complainants for the mistakes, lack of negligence, and lack of service on the part of the opponents.
10) The complainants have placed reliance on the judgment of Hon’ble National Commission reported in IV (2003) CPJ 114 NC in the case of U.S.Awasthy –Versus- Gulf Air & Anr. decided on 30th September, 2003. In judgment para 20 it was held as under
In the case before us appellant was promised his seat in the business class with all the attendant facilities. He is not told before embarking in the place that his seat is at a place where he could not recline as there was no reclining seat and for this the airline committed breach of the promise for which it is certainly liable. As to the reasons why the seat could not be reclining is of no concern to the passenger, as we said earlier. If he had been told when he purchased the ticket or before boarding card was issued to him that his seat is not reclining, he could have changed his mind and opted for some other airlines or some other flight. He is, therefore, certainly entitled to refund of an amount treating the seat given to him of the lower value. We think it is quite reasonable to hold that petitioner was given a seat in the economy class and not in the business class and would, therefore, be entitled to difference of the fare between the two. Further for the breach of promise petitioner will also be entitled to damages which we assess at Rs.1.00 Lakh.
In the present complaint before us, new tour was offered by the opponents to the complainants. But, it is the fact that due to the negligence of the opponents, the complainants could not enjoy the first tour as scheduled and for this, opponents committed breach of promise for which the opponents are certainly liable. The tour was postponed due to mistake of the opponents. Though, new tour was offered, the complainants were required to make arrangements regarding their family issues, business and other day to day scheduled work. So, mere offering of new tour in lieu of first one will not compensate the losses occurred by the complainants. It is also not justified to offer meager amount Rs.10,000/- per person as compensation for all the inconvenience, mental agony and loss of time etc. We think compensation of Rs.25,000/- to each complainant will be reasonable compensation. Considering the above discussion, we proceed to pass the following order.
ORDER
1) Complaint is partly allowed
2) The opponents are directed to pay Rs.25,000/- (Rs.Twenty Five Thousand Only) to each complainant (Rs.50,000/- in total) towards compensation for mental and physical harassment, agony and inconvenience.
3) The opponents are also directed to pay sum of Rs.5,000/- (Rs.Five Thousand Only) to the complainants as cost of this proceeding.
4) The above order shall be complied with within a period of one month from today.
5) Copies of this order be sent to the parties free of charge.
Pronounced Dated 28th March, 2014
