West Bengal

South 24 Parganas

CC/237/2015

Smt. Arati Samaddar , Daughter of Late Ananta Kumar Samaddar. - Complainant(s)

Versus

Kunoi Travel ( India ) Pvt. Ltd. - Opp.Party(s)

Sushandip Pathak.

29 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _237_ OF ___2015_

 

DATE OF FILING : 19.5.2015                       DATE OF PASSING JUDGEMENT: 29.11.2016

 

Present                         :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Sharmi Basu  &   Subrata Sarker

                                                                             

COMPLAINANT        :     Smt. Arati Samaddar, d/o late Ananta Kumar Samaddar of 82, New Santoshpur Main Road, P.S. Survey Park, Kolkata-75.

 

-VERSUS  -

 

O.P/O.Ps                            :     Kunoi Travel (India) Pvt. Ltd. 10, Wood Street, 2^nd floor, Room no.10 & 11, Kolkata – 16, also at premises no.1, Farn Road, P.S. Gariahat, Kolkata -19.

 

                                          

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                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

This is the short case of the complainant that complainant came across that O.P was conducting different international tours in Summer 2014,for which complainant chose a 13 days South Africa tour which the O.P desired and named as South Africa Slpendours with Kenya. It is the further case of the complainant that as per printed agreement of the O.p complainant paid an advance of Rs.5000/- only on 11.2.2014 by cash and on 12.2.2014 Rs.46,500/- by cheque in favour of SOTC,which is th4e mother concern of the O.P,  totaling to Rs.51,500/-.   In terms of the agreement total tour cost was Rs.2,09,826/-  subject to the fluctuation of exchange rate and such agreement was signed between the O.P and the complainant on 11.2.2014. The tour was scheduled Ex Mumbai on 10.4.2014. Accordingly complainant purchased air ticket on 17.2.2014 for the journey from Kolkata to Mumbai  by making payment of Rs.6,917/- . Complainant also purchased air ticket from Mumbai to Kolkata on 12.3.2014 making payment of rs.5400/-. It has claimed on 14.3.2014 complainant paid Rs.1 lac in cash and one account cheque amounting to Rs.11,150/- totaling to Rs.1,11,150/-to the O.P. Again on 3.4.2014 complainant had to pay a sum of Rs. 47,176/-  to the O.P to pay off the balance amount of tour cost. As per instruction of the O.P complainant also took oral polio vaccination for Yellow fever which is required for international travel. The cheques were duly encashed by the SITC and O.P. I t has claimed that complainant is an old lady of 68 years old and already paid Rs.2,09,826/- for travelling to South Africa and Kenya which was scheduled to commence on 10.4.2014  and the said tour was supposed to end on 23.4.2014. It has claimed that O.P took the aforesaid money with the assurance that they would look after all the necessary formalities to obtain visa required for travelling to South Africa and Kenya and one of the officers of the O.P namely Sri Hira Sardar collected on 13.3.2014 from the complainant her passport, photographs and other documents from her residence for the purpose of procuring visa. But even after lapse of considerable time the O.P did not arrange to provide visa for the complainant and inspite of repeated query O.P did not give any satisfactory reply regarding availability of Visa It is claimed that on 8.4.2014 the officer of the O.P informed the complainant that Visa is going to be ready but the same was not handed over. Since the tour was scheduled to be commenced on 10.4.2014  and visa was not ready till 8.4.2014, considering the aforesaid deceitful behavior of the O.P complainant compelled to cancel her ticket on 8.4.2014 at about 9.57p.m.  for 9.4.2014 Kolkata to Mumbai and subsequently the air ticket for the journey of 23.4.2014 from  Mumbai to Kolkata was also cancelled and for such cancellation of air ticket a huge charges was deducted. It has stated that complainant rang up the O.P on several occasions to return the passport and the money which was taken by the O.P from the complainant. Thereafter on 28.4.2014 one Mr. Supam intimated the complainant with dire consequences and thereby complainant sent a notice dated 5.5.2014 to return the said passport and money but the O.P kept mum and lastly on 7.5.2014 one of the representative of the O.p returned the passport to the complainant at her residence but did not pay back the said money which was spent for the purpose of the tour. Hence, the complaint for necessary direction to the O.P for paying back Rs.2,09,826/- together with interest @18% p.a from 3.4.2014 till the date of realization, compensation Rs.9 lacs, damages Rs.7 lacs, cost etc.

The O.P contested the case by filing written version and has denied all the allegations leveled against them. It is the positive case of the O.P that complainant was informed clearly that the to travel overseas a Visa is required which could only be granted by an Embassy/consulate of a sovereign state and over which as the travel agents, the O.P has no control  in it. It has claimed that the O.P mere a tour operator and not a Visa issuing agent and hence at best can only act as a document courier between the intending travelers and the respective embassies , and has to adhere to all terms and conditions as laid down by the respective embassies and be bound by their decision which is final. It has claimed that complainant did not make the full tour payment within 45 days prior to departure as mandated by the tour terms and conditions. Last payment was made barely a week prior to the date of departure, which shows that complainant was in fact not sure and serious to undertake the tour. Although complainant was not serious ,in order to assist the complainant to submit her VISA application on time, the O.P constantly remaindered to submit the necessary VISA documents well in advance to avoid any unforeseen delays in visa processing by the respective embassy/consulate. But despite reminders the required documents were only submitted on 13.3.2014 which is less than a month prior to the date of departure. It has been pointed out by the O.P that complainant admitted in the complaint petition regarding the condition of the tour and personal documents along with the passport would be handed over to her as soon as the respective Embassy/consulate takes a decision on her Visa Application and despite such clear knowledge the complainant voluntarily cancelled the tour with the O.P on 8.6.2014 prior to two days of departure while her visa was granted by consulate on 9.4.2014 and complainant is now resorting to untrue means to extort monies. So, it was the complainant’s sole decision to cancel her travel and thus was liable for applicable cancellation charges, since the O.P had already confirmed hotel and other services with independent suppliers and hence was liable for the applicable cancellation charges  in terms of the agreement. It has claimed that complainant paid Rs.2,09,826/- and cancelled her tour prior to two days  of departure and hence was liable for 100% cancellation charges as per the applicable cancellation policy  ,seen, read, understood and agreed by the complainant. It has claimed that O.P suffered huge financial loss as they were burdened with full cancellation charges levied by overseas tour operators. The O.P specifically highlighted the condition of the cancellation charges in the written version in para 11,12 onwards along with the case laws reported in several decisions of the Hon’ble Supreme Court and prays for dismissal of the case .

Points for decision in this case is whether the O.P acted deficiency in service or unfair trade practice or not.

                                                            Decision with reasons

At the very outset it must be stated that complainant has miserably failed to prove that she was always ready and willing to comply the terms of the agreement of the South Africa Kenya Tour because we are aware that Hon’ble Supreme Court in several decisions has observed that when a person signs a document which contains certain contractual terms that normally parties are bound by such contract. It is for the parties to establish exception in a suit. Further, when a party to the contract  disputed the binding nature of the signed document, it is for him or her to prove the terms of the contract or circumstances in which he/she came to sign the document needs to be established. But Hon’ble Supreme Court also held that in an appropriate case the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the factual situation/position and may grant remedy. But each case depends upon its own facts. It is also observed that in a appropriate case where there is an acute dispute of acts necessarily the Tribunal has to refer the parties to the original civil court established under the Civil Procedure
Code, 1908 , or the appropriate State law to have the claims decided between the parties and that both the parties are bound by the terms in the contract.

Keeping  in mind the above mentioned observation of the Hon’ble Supreme Court and keeping in mind that parties are binding by the terms of the contract we must have to see firstly whether complainant has been able to prove deficiency of service or unfair trade practice of the O.P which will only be considered by this bench of Consumer Forum. Here, in the instant case admittedly complainant hurriedly cancelled here ticket on 8.4.2014 at about 9.57 p.m. for Kolkata to Mumbai  Air ticket and subsequently the return ticket  from Mumbai to Kolkata, knowing the fact that Visa has not yet ready on 8.4.2014. But the tour was commenced on 10.4.2014. So, complainant voluntarily cancelled the tour. If complainant voluntarily cancelled the tour before the tour was undertaken, in our considerable view it cannot be stated deficiency in service and unfair trade practice. It is the decision of the Hon’ble National Commission reported in 2014 (3)CPR 76 NC that “once respondent has claimed refund amount the she ceased to be a consumer. Here, in the instant case complainant claims for refund amount as well as passport. Passport was handed over but refund has not been made. It is the case of the O.P that 100% cancellation charge is applicable because complainant cancelled the tour voluntarily prior to two days of scheduled departure. But in the case in hand cancellation of ailment was held without notice, for which money was refunded. But here cancellation was happened prior to two days of scheduled tour by the complainant herself. So, complainant has failed to prove that O.P failed to give any services whatsoever but if complainant would have left Calcutta to avail the tour at Mumbai and  then if the O.P failed to produce Visa, no doubt that is a case of deficiency in service. But complainant never moved from Kolkata when the tour was admittedly scheduled and complainant cancelled the air ticket from Kolkata to Mumbai and Mumbai to Kolkata. Thus, the entire episode and payment made by the complainant for the above mentioned tour clearly demonstrates that complainant was an unwilling traveler for the tour of South Africa and Keniya which is scheduled to be commenced on 10.4.2014, that is why without getting any positive reply from the O.P regarding Visa ,complainant hurriedly cancelled the tour programme at about 9.57 p.m on 8.4.2014. So, complainant is not a “Consumer” since she failed to prove that she availed the services from the O.P. Of course, another door of justice is open to the complainant i.e. Civil Court ,wherein complainant may file money suit for return of moneys but here she will not get any relief, because she has miserably failed to prove that she availed of the services when the scheduled tour was cancelled by her before two days of tour.

With that observation we are very sorry to say that the complaint case should be dismissed in the eye lf law.

Accordingly, it is

                                                                                    Ordered

That the application under section 12 of the C.P Act, 1986 is dismissed on contest against the O.P but in the sorry state of affairs we do not propose any cost, but liberty is given to the complainant to file money suit  before the competent Civil Court having its jurisdiction subject to limitation.

 

            Let a plain copy of this order be handed over to the parties free of cost.

Member                                                      Member                                                                President

Dictated and corrected by me

                               

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

                                               

Ordered

That the application under section 12 of the C.P Act, 1986 is dismissed on contest against the O.P but in the sorry state of affairs we do not propose any cost, but liberty is given to the complainant to file money suit  before the competent Civil Court having its jurisdiction subject to limitation .

 

            Let a plain copy of this order be handed over to the parties free of cost.

Member                                                      Member                                                                President