Order-18.
Date-08/09/2016.
This is an application u/s.12 of the C.P. Act, 1986.
Complainants’ case, in short, is that they intended to travel Europe by a package tour namely “New Magnificent Europe Summer, 2015 19 days” Europe Tour Package announced by the OP1. OP1 collected Travel Insurance from the complainant during the tour period and OP3 also issued policy number in favour of the complainant. OP2 issued printed materials regarding tour programme. The complainants paid a total sum of Rs.5,24,500/- including insurance premium for travel insurance on different dates before the commencement of the tour programme. The complainant started their journey on 15-05-2015 with OPs1 and 2 from Kolkata Netaji Subhash Chandra Airport. It is alleged that the complainants had faced biter experiences during the Europe Tour from the very beginning. The hotels provided them during the tour were substandard, hotels were of very poor quality, specially the Swiss Hotel, Zug, Switzerland. The OP1 also failed to supply breakfast properly. On 24-05-2015 complainant no.1 faced an accident at Jung Franch maintained during the tour and her lower leg was fractured and she was admitted in Zuger Kantons in Switzerland and the OPs did not cooperate with the complainants in respect of travel insurance. The complainants were told that cashless facility would be available for taking travel insurance but the hospital in Switzerland refused to recognize the policy provided by OP1 and asked the complainants to settle the bills in cash. Complainant no.1 was advised immediate surgery and the hospital was asking Rs.25 lakhs in cash. The complainants were carrying such a booking amount the tour operator contacting the officer in Mumbai and instructed him to cancel all the hospital bookings from 25-05-2015 onward immediately. The hospitals bill was around Rs.1,20,000/- and had to be paid in cash by the complainants. The complainants, thereafter, decided to return to India against all the odds. The complainants booked on their own return flight through Qatar Airways on 25-05-2015 by paying Rs.1,05,086/- on their own and return to India. The complainants were comp0elled to discontinue the tour and informed the same by e-mail to the OP on 25-05-2015 itself. OP verbally assure the complainants for returning money after making calculation within 15 days but on 03-06-2015 OP informed the complainant to lodge claim for trip curtailment and medical expenses with the insurance company but on 09-06-2015 OP stated by e-mail that the departure tickets are non-refundable and everything will be reimbursed by the insurance company that is OP3 under trip curtailment claim. It is alleged that all the sight seen was never covered properly during the tour and during sight seen all entry tickets were booked on the spot and there was no booking made in advance by OP1 which is alleged to be under the purview of unfair trade. It is alleged that the OP1 has saved money in spot booking. The complainants had prayed for compensation for deficiency of service and unfair trade practice.
OP1 has contested the case in filing written version contending, inter alia, that the present complaint is vague, misconceived and is not maintainable in fact and in law. It is stated that the complainants at the time of booking were provided with all material information as regards the tour description, pricing, inclusion, exclusion of the terms and condition of the tour and after having gone through the same and fully understanding and accepting the same, the complainants confirmed their participation on the said tour. The complainants had entered into a mutually binding contract in respect of the said tour. The tour started from Netaji Subhash Airport, West Bengal, India on 15-05-2015 by Emirates Airlines. It is stated that OP is merely a tour operator and holds tour as an organizer and do not own, control or operate any airline, cruise line, railway coach company, hotel or any other independent contractors or service providers in relation to the service availed by the complainant during tour. It is stated that OP is a tour operator of international repute and the tour brochure clearly defines what is included and what is excluded. It is also stated that the complainants made the final payment which was in excess of 60 percent that is INR 315000 of the total tour cost only on 16-05-2015 which is, in fact, a day after scheduled date of departure. It was a generosity of the OP as being a customer centric organization to allow the complainants to proceed on tour even before making 60 percent payment towards balance tour cost but the complainants in return have filed this frivolous, baseless case. It is stated that OP assisted the complainant merely in obtaining a standard travel insurance policy from an independent service provider and it is needless to say that there exists a direct contractual relationship between the complainant and the insurer with respect to the policy coverage. It is denied that the complainants were not provided with standard hotel during the tour. It is also stated that the complainants booked their return flight tickets on their independent decisions without any knowledge of the OP. This OP has denied deficiency of service or unfair trade practice and has also prayed for dismissal of the case.
Other OPs that is OPs2 and 3 have not decided the case and the case4 has proceeded ex parte as against the other OPs.
Points for Decision
- Whether the OPs are deficient in rendering service to the complainant?
- Whether OPs are guilty of unfair trade practice?
- Whether the complainants are entitled to get the relief as prayed for?
Decision with Reasons
We have travelled over the documents on record namely brochure regarding “New Magnificent Europe Summer, 2015 19 days” Europe Tour Package, Xerox copy of policy certificate of United India Insurance Company Ltd., INR payment receipts, Xerox copy of air tickets, summary discharge of Zugar KIanton Hospital, Switzerland, e-mail correspondences on different dates and other materials on record. It appears that the complainants had booked the tour organized by answering OP1 marked as New Magnificent Europe Summer, 2015 19 days. We find that the tour started from Netaji Subhash Airport, West Bengal at 15-05-2015. The complainant had participated on the tour on 15-05-2015 and the complainant discontinued the tour on 25-05-2015 due to unavoidable medical grounds. It also appears that complainant no.1 faced an accident during tour and treating doctor in Switzerland advised that there are several multiple fractures and was also advised immediate surgery. Complainant no.1 was treated initially in Switzerland and thereafter, in view of gravity of situation flew back to India on their own with the “pneumatic right leg splint system” provided by the hospital in Switzerland. We find that insurance company (OP3) has paid Rs.8,4222/- vide their letter dated 05-05-2016 as admitted by the complainants in their WNA and it is also alleged that the OP3 has refused to pay any further amount as trip curtailment was not covered by SOTC. It is pertinent to note that OP1 merely assisted to the complainant in obtaining a standard travel insurance policy from a confident service provider being OP3 and accordingly we think that there exists a direct contractual relationship between the complainant and the insured with respect to the policy coverage. We think that the complainant has obtained the said travel insurance policy basing on their own requirements and risk appetite. We think that OP1 has no direct role whatsoever in this regard. We also see that OP3 has also made a payment of Rs.84,222/- to the complainants. If the complainants have any further claim, they can move in accordance to law against OP3.
Let us now come to the issue of curtailment of the tour programme. It is categorically denied by the OP that they are responsible for the accident of complainant no.1 it is true that OP is not responsible for the personal health of any individual travelling with them. On the contrary, it is the individual duty and responsibility of the respective travellers themselves to take care for their health and well-being. Complainant no.1 met with an unpleasant incident and OP1 had no hand in it. We do not think that it would be proper to shift all the blame upon the tour operator as such. Hence, by no stretch of imagination we think that OP1 has any role whatsoever, in this regard in the matter of the accident and consequent curtailment of the tour programme by the complainants. But it appears that the complainants vide e-mail on 25-05-2015 itself had requested to cancel all the remaining hotel reservation and return flight tickets for which immediately action was requested. Moreover, OP vide e-mail dated 25-05-2015 confirmed that cancellation request has been forwarded to their office and also assured verbally to return the money within 15 days but subsequently vide e-mail dated 09-06-2015 OP has mentioned that departure tickets are non-refundable. We find that the flight was scheduled to depart on 02-06-2015 and the complainants intimated the OP about cancellation of hotel reservation and return flight tickets on 25-05-2015. It is argued from the side of the OP that in the event of “no show” the applicable cancellation charges would be 100 percent and the complainants are feigning from ignorance of the same. We, however, are not consensus of opinion with such argument. It appears that the complainants fell into serious troubles in a foreign land and uder compelling circumstances, they had to curtail the tour programme and they also duly informed the organizer of the tour programme regarding such curtailment of the trip and we think that they deserved sympathetic consideration in this regard. We, however, find that the OP1 paid INR 24,000 each to the complainants. We, however, did not think that the amount is sufficient for the pain and agony the complainants underwent in persuading for refunding the money for curtailment of trips for 7 days. We think that there has been some sort of deficiency in service on the part of the OP1 in this regard.
In result, the case succeeds.
Hence,
Ordered
That the complaint be and the same is allowed on contest against OP1 in part and dismissed ex parte against OPs2 and 3.
OP1 is directed to pay an amount of Rs.1 lakh to the complainants for compensation, harassment and mental agony within one month from the date of this order apart from litigation cost of Rs.10,000/- i.d. the complainant will be at liberty to pay the order into execution u/s.25 read with Section 27 of the C.P. Act.
