Karnataka

Bangalore 4th Additional

CC/14/1519

Sri. Anand Chintappali Srinivas - Complainant(s)

Versus

Kuoni Travel (India) Pvt Ltd and Others - Opp.Party(s)

19 May 2018

ORDER

Complaint filed on: 27.08.2014

                                                      Disposed on: 19.05.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1519/2014

DATED THIS THE 19^th MAY OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Sri Anand Chintappali Srinivas, Aged 60 years,

S/o Srinivasa Reddy,

R/at no.66/12, 1^st cross,

7^th main road, BTM layout,

1^st stage, Adjacent to KEB layout, Bengaluru-76.

 

By Adv.Sri.Dinesh Mahale    

 

V/s

Opposite party/s

Respondent/s:-

 

1. KUONI Travel (India) Pvt. ltd., KUONI SOTC,

Malik’s Embassy, no.9,

1^st floor, Union Street,

Off Infantry Road,

Bengaluru-02. Rep.

by its Manager

Mr.Dabanta Patnaik Kumar

 

2. Mr.Pradeep.B.N,

Executive Sales,

KUONI Travels India Pvt. ltd., no.2, 1^st floor, Commercial complex, no.35/1B,

Munnekolal Varthur Road,

Near Marathahalli Railway Bridge, Marathahalli,

Bengaluru-37.

 

3. Mr.Nikhil S Prabhakar, Dy.Manager,

KUONI Travels India Pvt. ltd., no.2, 1^st floor, Commercial complex, no.35/1B,

Munnekolal Varthur Road,

Near Marathahalli Railway Bridge, Marathahalli,

Bengaluru-37

 

By Advocates M/s.S.Ramakrishnan

Shiva & Co.,

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party no.1, 2 & 3 (herein after referred as Op.no.1, 2 & 3 or Ops) seeking issuance of direction to pay jointly and severally a sum of Rs.5,65,291/- with interest at 12% p.a. Further direct them to pay cost and to grant such other reliefs deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that, Complainant along with his family wanted to go for Europe tour during summer holidays of 2014. To have a hassle free package tour, the Complainant approached the Op.no.1. The Op.no.2 being an Executive sales of Op.no.1 came to the Complainant’s residence on 28.03.14 and explained tour outlines.  After discussions the Complainant chose 13 days ‘magical europe’ tour starting from London to end with Rome. The total cost of package tour for 13 days from Bengaluru for 4 persons was fixed for Rs.7,79,691/- which includes all taxes and discounts. The Complainant further submits that, in fact Complainant wanted to travel in the first week of May 2014, since Op.no.2 said that dates were not available, tour of the Complainant was fixed on 10.05.14. Immediately, on 28.03.14 Complainant paid a sum of Rs.2 lakhs as advance amount out of the above said total amount and balance was to be paid after getting VISA. The Op.no.2 also collected photocopy of passports and other required documents. Intermittently the Complainant was following up with the Op.no.2 about arrangements of their tour. The Complainant further submits that, on 02.05.14, he called Op.no.2 to verify status of the Visa, but he assured him that the same will be secured well ahead of the tour date. Thereafter Complainant followed up the matter with Op.no.2 and on 06.05.14, Op.no.2 informed him that they cannot go on 10.05.14 and he suggested him to travel on 27.05.14, which was not possible for him due to his prescheduled work. Immediately the Complainant called Op.no.2 who answered saying that they have not processed tour of the Complainant at all. In the evening of 06.05.14, Op.no.2 & 3 came to Complainant’s residence with similar date change offer, which was not acceptable rather Complainant sought refund of the advance amount. However both of them put up another option before him to travel from Amsterdam and continue the same tour without visiting London was Complainant’s paramount dream. The Op.no.2 & 3 informed him that they will reduce all costs of non-vising places. Having no choice at that moment, he agreed for the same. The Complainant further submits that, even after that he was following up the matter with Op.no.2 & 3 for confirmation of departure and flight timings. Complainant made several phone calls, which the Ops did not pick up on several occasions, gave some evasive replies without concrete tour plan like date and time, keeping the Complainant in total dark. In the meantime, Complainant even visited the office of Op.no.1 where he did not get a proper answer. The Complainant further submits that, when things stood thus, on 12.05.14, Op.no.2 & 3 came to Complainant’s residence at 8.00p.m with Visa to Paris saying that their flight is going to take off at 6.30a.m on 13.05.14 and at that movement he has to pay balance amount of Rs.5,79,691/- in cash. Even at that moment Complainant refused to travel as he was fed-up with false assurances of Ops. The Op.no.2 & 3 warned the Complainant that the Complainant and his family have to travel at that time, otherwise he would loose the advance amount already paid and they will recover the remaining tour cost also. At that moment also the Ops once again promised the Complainant that they will refund all costs of non-visiting places.it was a shock for the Complainant. However, he did not like to disappoint his children and agreed for the change and reluctantly with great difficulty arranged and paid balance amount of Rs.5,79,691/- in cash. The Ops did not give enough time to the Complainant and his family members to make arrangements for their travel. On 12.05.14 at 11.30p.m the Op.no.2 came with flight tickets and by next few minutes the Complainant along with his family started for Bengaluru airport to take off their flight. The Complainant further submits that, he booked a package tour, which covers all airfare, Visa, local transport, food, hotel stay, taxes etc., and the Ops agreed to ensure the same. Once the Complainant’s family came to ORLY airport Paris, there was no transport arranged to reach the hotel and there was no food offered/arranged for the Complainant and his family. The Complainant was constrained to take food at their cost. On the next day also the Op ought to have made transport arrangement for Complainant, but he was constrained to make his own arrangement to reach Disney land as there was no such arrangements were made by the Ops. By this Complainant had to spend Rs.25,600/-, which was part of the package tour. Even thereafter it was not a pleasure for Complainant to travel as the Op had made shabby arrangements at all places. However, Complainant reached Bengaluru on 23.05.14. The Complainant further submits that, he has paid a sum of Rs.7,79,691/- to the Ops for the package tour for 4 persons from London to Rome. Because of their negligence in making arrangements, the Complainant and his family members were not able to visit places in London to Paris. Now it is not possible for the Complainant to go for the same unnecessary spending money and time. Because of the sheer negligence of the Ops, the Complainant and his family members were not able to see various places from London to Paris. The Complainant further submits that, Ops agreed to refund the difference amounts and all costs of non-visiting places. On enquiry, Op.no.1 informed the Complainant that the travel cost from Paris to Rome for the family of the Complainant is Rs.4,40,000/-. Hence, the Ops have to refund balance amount of Rs.3,39,691/-. The Complainant further submits that, Ops have played unfair trade practice against the Complainant. All the time the Ops gave evasive replies, kept the Complainant in total dark about their tour dates, time etc., and all the time they were on tenterhooks. Whenever the Complainant called the Ops and visited them, instead of giving proper reply, caused mental agony to him and his family members. In this context, he issued legal notice dtd.14.06.15. But Op.no.1 instead of complying the demand gave evasive reply. And Op.no.2 & 3 did not send any reply. Hence prays to allow the complaint.

 

3. On receipt of the notice, Op.no.1, 2 & 3 did appear and filed joint version denying the contents of the complaint. The sum and substance of the version of the Ops are that, the complaint filed by the Complainant is not maintainable either in law or on facts, hence liable to be dismissed.  It is the contention of the Ops that, they are mere tour operators and do not control or operate any airlines, neither do they own or control any shipping company/cruise liner, coach or coach company, hotel, transport or any other services as clearly mentioned in the brochure. The Op craves leave to refer and rely upon their entire brochure, terms & conditions, how to book rules governing the said tour, related documents and the booking form signed by the Complainant. The Op also relies upon the entire correspondence between the parties. The Op reserves their right to add, amend, alter, delete or file a rejoinder to this version. Op states that, Complainant have not placed facts before this forum. Complaint ought to be dismissed on the grounds of lack of jurisdiction. In accordance with law, as settled by the Hon’ble Supreme Court of India, when more than one court has jurisdiction to entertain a cause of action and parties have by contract agreed to confer the jurisdiction to one of such court alone, such contract is valid and the parties are bound by the same. Reference may be made to the case of (a) ABC Laminart Pvt. ltd., & anr v. AP Agencies, Saleem (1989) 2 SCC 163 (b) Bharathi Knitting co. vs. DHL Worldwide express courier division of airfreight ltd., AIR 1996 SC 2508. The Complainant by signing the booking form have accepted the jurisdiction of the courts/forums/tribunals in Mumbai only. Ops further submit that, Complainant had booked with the Op a European tour ‘Magical Europe’ after reading and understanding the Booking Conditions, the How to Book rules, the Tour Itinerary and the Tour Price List. The Complainant had signed the Booking Form in acceptance of the Booking terms & conditions and How to Book rules, which alone constituted the contractual relation between the Parties and govern the mutual rights, liabilities, duties and responsibilities concerning the issues covered by the said ‘Booking Conditions and How to Book rules. The above referred documents elaborately explain and elucidate the entire scheme of the tour, its pricing and relevant terms & conditions.

 

3a. Ops have specifically denied parawise contents of the complaint filed by the Complainant. Ops further submit that, they are not aware of the family background of the Complainant. The Op states that the Complainant was considering taking Europe tour and had consulted various tour operators besides the Op to find a package that would best suit his needs, after making enquiries, Complainant had decided to book on Op’s tour ‘Magical Europe’ after reading, understanding, agreeing to and signing the booking form along with the terms & conditions at the overleaf of booking form which outlines and defines the relationship between the Complainant and Op. Thus Complainants were bound by the tour’s booking terms & conditions. It is to be noted that all services shown were given to the Complainant. The Complainant himself chose to skip UK since there was no time to get his visa, and he did not want to take a later tour departure. Ops further submit that, Complainant paid the nonrefundable booking amount of Rs.2 lakh to confirm his seat. There was no compulsion on the Complainant to either visit the Op or book a tour through the Op. It is flatly denied that balance amount had to be paid after getting Visa as alleged, Complainant is well aware that the full payment was due 45 days prior to departure and that till the full payment was made final services could not be provided, as they would entail a financial liability. It is important to note that even after repeated reminders for making balance payment the Complainant deliberately and for reasons best known to them failed, neglected and stayed away from making the balance payment. The Complainant was also aware that Embassies see proof of financial status of all applicants and proof of tour full payment to show their serious desire to take the tour. Yet the Complainant deliberately held back from making payments, possible to merely obtain his visa from the Op and then not take Op’s tour. There is no other reason to explain why the Complainant did not make his balance payment amounting to Rs.5,79,000/- till the last day. The Op humbly states that they are tour operators and do not offer ‘visa services’ as seems to be suggested by the Complainant. Further, it is false to suggest that the Complainant furnished all the necessary documents to the Op to process the tour arrangements. Ops further submit that, the Complainant was considering taking an amazing Europe tour and had consulted various tour operators besides the Op to find a package that would best suit his needs. It was Complainant’s sole decision to book Op’s tour. It is pertinent to note that after reading, understanding and agreeing to the booking terms & conditions Complainant accepted the same and signed the said booking form and paid the non-refundable booking amount to confirm his seat. Op vehemently and categorically denies that any assurance was ever given by Op.no.2 to the Complainant over grant of a visa. The Complainant is aware that visa is a permission granted by the Embassy/consulate of a sovereign state to an intending traveler to allow him/her permission to enter their country based on their criteria. As a tour operator Op.no.2 neither processes nor issues any visas or overseas travel documents or grants permissions which are the sole prerogative of embassies/consulates of the sovereign states. In fact Op.no.2 has no role whatsoever in the visa process and at the most could be considered merely as acting as document courier agent between the tour participants and the embassy/consulate. It is stated that in good faith Op.no.2 followed up with the Complainant for the visa documents and it was Complainant who delayed for gathering all the documents related to visa and submitted on 18.04.14 which was too late to process UK & Schengen part of the tour for which Complainant agreed. It is denied that there was any offer given by the Op.no.2 for refund of advance amount and put Complainant to strict proof thereof. It is also flatly denied that there was any pressure levied on the Complainant to take the departure of the 27.05.14 as alleged. As stated by the Complainant himself, Complainant was keen on travelling early in May and hence kept on insisting that some arrangements be made and somehow accommodates Complainant if not on 10.05.14 itself, then as close as possible to that date. In fact it was only on the Complainant’s pressure that the Op had to make additional arrangements and reroute the Complainant’s tickets to Paris so that Complainant could not only leave India as per his suitable date but also get sufficient time in Paris as desired by his family. It is a matter of record that the Op went out of their way to get the Complainant’s group tour tickets which are non-changeable, to be rerouted to accommodate the Complainant. It is also a matter of fact that the delay in submission of requisite documents as required by the UK High Commission was responsible for the Complainant being unable to receive his UK visa on time and cannot be permitted to take advantage of his own action/fault/shortcoming. The Op has gone out of their way to accommodate the Complainant in every way possible. It is flatly denied that ‘having no choice at that moment the Complainant agreed for the same’. The Op states that under no circumstances should the Complainant be permitted to benefit from his own wrongful actions from delaying submission of documents for his visa. The Op would have been happy to refund the booking amount to the Complainant less applicable expenses, but it was only on the insistence of the Complainant that the Op went out their way to accommodate the Complainant. Ops further submit that, it is flatly denied that the Complainant was following up the matter with the Op and put the Complainant to strict proof thereof, on the contrary it was the Op who was constantly reminding the Complainant to ensure requisite documents required for issuance of UK visa to be submitted on time, which for reasons best known to the Complainant were not complied with. The singular visit the Complainant made to the Op’s office was to finally deliver few documents for Complainant’s UK visa which were also found highly insufficient by the authorities. Ops further submit that, it is pertinent to note that on the one hand the Complainant kept delaying submission of relevant documents required for processing Complainant’s UK visa and on the other hand deliberately kept delaying making his balance tour payment till the very last day even though Complainant was fully aware that as per terms & conditions, balance payment had to be made 45 days prior to departure so that all services could be reconfirmed. Even though the Complainant failed to deliver correct documents on time and thus failed to get Complainant’s UK visa as well as delayed to make his tour payments till the very last day thus confirming his participation positively, yet the Op went out of their way to not only get the tickets reissued but also made alternate arrangement so that the Complainant could fly in to Paris as desired by Complainant’s family members. It is flatly denied that any warning was ever made to the Complainant as alleged. It is clearly stated that the Complainant is now, after having enjoyed his holiday and availed of special arrangements made by the Op is now as an afterthought trying to somehow use the services of this forum to extract monies from the Op which he knows are neither due nor payable to him. The Complainant was also aware that as per terms & conditions if the balance payment was not made 45 days prior to departure then the Op was well within their rights to apply necessary cancellation charges as transparently advised to the Complainant well in advance. It is also flatly denied that any promise was ever made to the Complainant that a single rupee would be made or be available to the Complainant as also very transparently mentioned in the Op’s terms & conditions which read as follows:-

“There shall be no refund if the Tour participant fails to join the group at the commencement of the tour, or joins the group late or leaves the group before culmination of the tour. If the tour participant along with his family is compelled to discontinue the tour due to any reason such as illness, death, loss of passport, no claim shall be entertained for refund of utilized services.”

At the cost of repetition the Op clearly states that the Complainant’s inability to get his UK visa was solely due to his non-delivery of required documents on time and Complainant alone was responsible for the same. The Complainant was also responsible for dithering in making his balance payment and thus confirming his participation and then confirming his own statement in para 6 of the complaint where Complainant commits to have made his final payment of approximately Rs.6 lakhs on the very last day. It was also on Complainant’s request that his children would rather spend more time in Paris they were flown in to Paris. It is once again stated that it was due to the insistence of the Complainant to somehow travel early in May and his inability to provide sufficient documents for visa which coupled with his not making tour payments till the last day were wholly and solely and exclusively responsible for his having to skip UK and the Complainant having to re-route his itinerary to Paris. The Op has really gone out of their way to accommodate, assist and help the Complainant at every stage and is now very surprised that for avarice the Complainant has moved this forum. Ops further submit that, Complainant is now resorting to blatant misstatements, falsehood and mis-representation merely to somehow try and mislead this forum in to believing that there was some issue with their holiday and thus try and claim some refund or monies from the Op who have gone out of their way and ensured the Complainant and his family enjoyed an excellent holiday, in spite of several short comings attributed to the Complainant himself. The Complainant was fully aware that he had booked on an all-inclusive package tour where o changes or amendments are made for individual clients since all services are fully pre-booked and confirmed in advance. The Op was faced with the prospect where on the one hand the Complainant did not submit relevant documents in time for his UK visa thus leading to his not getting his visa on time and on the other hand not making his tour payments till the day of departure knowing that full payment was to be made 45 days to departure and he somehow wanted to travel early in May and the Op was forced to re-route a package tour merely to accommodate the Complainant. The Complainant knew that it was on his own request that the Op had to reissue his travel from India to Paris so that his children could spend more time in Paris before the rest of the group arrived. He was also aware that since he had arrived in Paris a day prior to the rest of the group, he would have to make his own travel arrangements from the airport to the city and had clearly agreed to the same. The Complainant was fully aware that since he and his family was travelling in advance to Paris on their request and since the group was not in Paris on that day, the Complainant would have to make his own arrangements for airport/city transfer, meals and other services for that day. The Op is shocked that the Complainant is now resorting to such falsehood only to try and receive some monetary benefit after having fully consumed and enjoyed their package. It is also pertinent to note that the tour visit to Disneyland in Paris was planned enroute from Amsterdam to Paris in advance, at this request, he was clearly advised to ensure that he now has to reach Disneyland on his own and that he could then join the rest of the group there onwards. Thus while the Complainant had to reach Disneyland on his own, the Op provided entrance tickets as well as his return transfer. Once again this is a frivolous complaint since the Complainant was fully aware of the fact that his services were re-routed only to suit his specific requirements. He cannot be permitted to take up this issue only to pressurize the Op to making a refund that was never agreed to and the Complainant is put to strict proof to show that the Op had indeed agreed to provide services, the Complainant now claims had to be reimbursed. It is flatly denied that any amount leave alone an amount of Rs.25,600/- as falsely claimed is either due or payable to the Complainant since he was fully aware that he had to make his own arrangement from the airport to hotel in Paris because he was arriving separately, that the food for 1 day that he was not with the group had to be paid by him and that he would have to reach Disneyland on his own since once again he was travelling separately from the group. The Complainant was fully aware about all these facts and had agreed to the same at the time when he had discussed his rerouting with the Op which was also due to his own inactions of not submitting UK visa documents on time and not making full tour payment on time. Ops further submit that, the Complainant right from the time of enquiry was fully aware of the tour cost and charges and had agreed to participate after having read, understood and accepted all the terms & conditions. After having availed, consumed and enjoyed all the services the Complainant cannot be now permitted to create imaginary issues only to try and get monetary benefits for himself. A Complainant cannot and should not be permitted to encash on his own failure nor be permitted to avail and enjoy the services and then somehow try and create illusory issues to get a refund. It is flatly denied that there was any negligence and that the Op once again clearly states that the visit to London was not possible since the Complainant failed to obtain his UK visa due to his own inability/delay in submitting documents on time. The Op is shocked to learn that the Complainant claims he could not see Paris when in reality Complainant spent more time in Paris than any other member of the group. A mere perusal of para 7 of the complaint clearly shows that the Complainant was in Paris one clear day before the rest of the group. It is once again flatly denied that there was any negligence on part of Op while the Complainant himself was responsible for his inability to get a UK visa thus putting OP to great difficulty in having to rework on his travel itinerary to suit the Complainant’s travel dates. Ops further submit that, it is flatly denied that the Op agreed to refund a single rupee to the Complainant and the Op insists that the Complainant produce documentary evidence to support his false misleading and hypothetical claim. The Complainant was fully aware of what all services were included and what all services were not included and had requested the Op to somehow accommodate his family which the Op did thereby causing Op untold difficulty and expenses. The Op humbly states that there is not a single rupee either due or payable to the Complainant and in fact prays that this complaint be dismissed with costs to prevent the Complainant from trying to mislead this forum merely to try and gain some monetary benefit for himself. Ops further submit that, at the cost of repetition the Op humbly states that the failure or inability of the Complainant to visit London was only, solely and exclusively due to his own actions and in fact the Op went out of their way to assist the Complainant and his family members. It is also relevant that till the day of departure the Complainant was not even sure if he really wanted to join the Op’s tour since he had not made a very large amount of balance tour payment thus confirming his participation. It is also a matter of fact that as stated above not only the Complainant participated in and enjoyed his holiday he also spent more time in Paris. The Op states that leave alone a sum of Rs.1 lakh not even a single rupee is due or payable to the Complainant. Further it is submitted that, it has properly answered to the notice sent by the Complainant, reiterating the facts herein stated in its objection stating that, there is no any deficiency of service on the part of Ops and not a single rupee leave alone a sum of Rs.5,39,691/- is either due or payable to the Complainant and the Op prays to dismiss the complaint with punitive cost. Ops also specifically submit that, the prayer clause of the complaint, it is flatly denied that a sum of Rs.5,39,691/- with interest at the rate of 12% p.a. or any amount whatsoever are payable to the Complainant. The entire claim of the Complainant is based on misrepresentation of facts, suppressing vital issues including the fact that it was the Complainant who deliberately delayed making the tour payment, while expecting the Op to fund his travel without having any assurance that Complainant would undertake to travel. The Complainant was further aware that by not making full payment at least 45 days prior to departure the Op was well within their right to forfeit the non-refundable amount paid, cancel the reservations, levy applicable cancellations charges. It is flatly denied that a single rupee is due or payable to Complainant since there was no loss, damage, defective service or mental agony suffered by the Complainant. A Complainant cannot be permitted to capitalize on his own errors and it is prayed that this complaint should be dismissed with exemplary cost. 

 

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents as Ex-A1 to A11. The Authorized Signatory of Ops filed affidavit evidence.  Written arguments filed by Complainant only. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether this forum got territorial jurisdiction to try and decide this complaint ?
2. Whether the Complainant proves deficiency of service on the part of Ops, if so, whether he entitled for the relief sought for ?    
3. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Affirmative. 

Point no.2: In the Negative. 

Point no.3: As per the final order for the following

 

REASONS

 

          7. Point no.1: In the version, Ops have taken specific contention stating that, this forum has got lack of jurisdiction as per the condition in the booking form, which has been duly signed by the Complainant, read as under:

‘For all claims, disputes of whatsoever nature relating to the Tours markets/coordinated by Kuoni Travel (India) Pvt. ltd., the courts, forums and tribunals in Mumbai, India alone shall have exclusive jurisdiction. All tours are subject to laws, rules of RBI/GOI.”

 

8. In this context, Ops have placed reliance on the two decisions which we have already stated in the forgoing paragraphs. The learned counsel for the Complainant submits that, complaint filed by the Complainant before this forum is very well maintainable in the light of the latest decision of the Hon’ble Supreme Court in (2010) 1 SCC 135 in the case of Sonic Surgical Vs. National insurance company ltd., wherein it is held at para A & C as under:

A. Consumer Protection – consumer forums – jurisdiction – territorial jurisdiction of State Commission – place of filing complaint – Expression ‘branch office’ in S.17(2)(b), CP Act 1986 – filing of complaint anywhere where branch office of Op situated – permissibility – held, expression ‘branch office’ would mean branch office where cause of action has arisen but not each and every branch office of Op wherever  it is situated – insurance policy taken at Ambala (Haryana) but claim for compensation made at Chandigarh contending that respondent has a branch at Chandigarh, hence complaint could be filed at Chandigarh – held, such interpretation leads to absurdity and bench-hunting – In this case, as cause of action arose at Ambala, State Commission, Haryana alone will have jurisdiction to entertain the complaint – Consumer Protection Act, 1986 – S.17(2)(b) (as amended w.e.f 15.03.03) – Civil Procedure Code, 1908 – S.20 – Corporate laws – company law – jurisdiction – territorial jurisdiction.

C. Civil Procedure Code 1908 – S.20 – cause of action – held, expression ‘cause of action’ means that bundle of facts which gives rise to a right or liability.

 

9. No doubt, the law laid down by the Hon’ble Supreme Court is binding on all the sub-ordinates courts. The above decision cited by the learned counsel for the Complainant, wherein it is clearly held that, “expression ‘branch office’ would mean branch office where cause of action has arisen but not each and every branch office of Op wherever it is situated.” In this view of the matter, we inclined to accept the contention taken by the Complainant. Hence, we are of the opinion that, this forum has got territorial jurisdiction, as the Complainant has booked the ticket in the office of the Op.no.1 to 3 at Bengaluru. Accordingly, we answered the point no.1 in the affirmative.

 

10. Point no.2: We have briefly stated the contents of the complaint as well as the version filed by Ops. No doubt, the Complainant has booked the ticket for Europe tour and he has also bound by the terms & conditions of the Ops as stated in para 13 (f) of the version filed by Ops, wherein it is stated that,

 

“There shall be no refund if the Tour participant fails to join the group at the commencement of the tour, or joins the group late or leaves the group before culmination of the tour. If the tour participant along with his family is compelled to discontinue the tour due to any reason such as illness, death, loss of passport, no claim shall be entertained for refund of utilized services.”

 

11. In our considered view, parties to the lis herein are bound by the terms & conditions in the light of the decision of Hon’ble Supreme Court in the case of Bharathi Knitting co. vs. DHL Worldwide express courier division of airfreight ltd., in AIR 1996 SC 2508. As per the say of the Complainant, Ops were found to be defective in rendering the service as per his expectation. It is also the case of the Complainant that, though he had paid entire amount, but Ops have made fault in Paris itinerary and did not provide any proper accommodation etc., In this context, the say of Ops are quite different stating that, it is the Complainant who did not furnish the necessary documents to get the Visa. Though it was not Op’s duty to get Visa, but as a good gesture it coordinated to the Complainant. Since the relevant documents are not furnished, the Complainant has made tactics to evade the balance amount in respect of itinerary. When the tour programme was comes very nearer, Ops have made all possible efforts to obtain visa and collected the remaining arrears. To falsify this content, evidence i.e. let in by the Complainant is not acceptable. In this context, the Ops have specifically informed to the Complainant by way of reply notice dtd.03.07.14 as per Ex-A11 stating that, Complainant had visited Op’s sales outlet besides other tour operators and after making enquiries, he had voluntarily decided to book on Op’s European holiday after reading, understanding, agreeing to and signing the booking form along with the terms & conditions at the overleaf of booking form which outlines and defines the relationship between the Complainant and Ops. Hence, the Complainant is to be bounded by the tour’s booking terms & conditions. Further at the very stage of enquiry, the Complainant was clearly informed that, Op run pre-packaged and pre-set tours where services are booked well in advance and where it is not possible to subsequently make amendments and even if done as a special case would not entitle one to any refund for any unutilized services and in fact any additional services are required which are not part of the pre-packaged and pre-set tours, would entail additional cost to be borne by the traveler. At the very stage of enquiry, Complainant was also clearly explained that, since the booking was being received for travel during the peak season, there was a logistical challenge in obtaining the UK visa and the Complainant was given the option to either take the next departure or skip UK. Hence, the Complainant requested Op to go ahead and book the Magical Europe tour requesting Op to exclude the UK portion and urgently apply for the Schengen visa. The Complainant was fully aware that by signing of the booking form and paying non-refundable amount and opting for a packaged tour, Op company would go ahead and make firm travel bookings on his behalf with various suppliers such as airlines, hotels, ground service operators, etc., as per the package and that the seat confirmed for the Complainant would not be available for sale throughout Op’s booking system to anyone else. Ops also informed the Complainant that, they are mere tour operators and neither do they own any hotels or airlines or tourist attractions, nor do they run and operate or manage them. They merely book their customers on their services which are packaged and cannot make any amendments to the same. Their booking terms & conditions itself inter alia states that “In the event of any tour participant misses part/whole of the tour due to delay/indisposition or any other reason whatsoever on his part, then he will not be entitled to claim any refund.” Further it was informed to the Complainant that, he was out of special gesture given an overall discount of Rs.1,20,000/- and a further Rs.34,000/- deduction for UK portion to the Complainant. This fact was known and accepted by the Complainant by his agreeing and even accepting the discount for the UK portion. These facts are not specifically denied by the Complainant.

 

12. Further it is noticed that, Op in its reply notice, further specifically informed to the Complainant that, only on Complainant’s request, Op went out of their way and rearranged the flight tickets at the very last minute and helped him to join the said tour from Paris. This fact was also known and well appreciated by the Complainant. Further Ops informed to the Complainant in reply notice stating that, it was also explained that as per the terms & conditions the final tour cost in Indian rupees and applicable foreign exchange component had to be paid at least 45 days prior to the tour departure. Since the Complainant himself had booked the tour less than 30 days prior to the departure date, he was asked to make immediate payments. In spite of this full knowledge and continuous reminders the Complainant had failed and neglected to make the full balance payment completely and had probably harbored an intention to shy away from taking the tour for reasons best known to him or had harbored the possibility of booking on their package tour merely to apply for and obtain a visa. Since visas and other formalities had to be done which are mandatory for travelling abroad, Complainant knew that not making payment could have affected their documentation and yet made no attempt to make the payments as per their agreed schedule and merely kept assuring Op that full payments would be made soon. In this context, Ops drawn the attention of the Complainant in respect of “Delay in adhering to the final date advised to the Complainant for full payment would result in the cancellation of his seat and levy of cancellation charges. Hence the balance payment has to reach to the Op as per the schedule mentioned in the invoice or at least 45 days prior to the departure of Complainant’s tour whichever is earlier.” But the Ops went really went out of their way to accommodate the Complainant. Ops have specifically informed to the Complainant that, lunch was not included in the Disney Land package, and was to be paid by the tour participants themselves. In fact, after going abroad, availing and enjoying the services the Complainant is now bringing up the issue that he had to take the transfer in Paris on his own, since it was on his request that Ops re-routed his travel schedule. Further Ops denied the allegations that, Complainant was not able to visit London due to negligence of Op. But Op states that, it was the Complainant who had himself decided not to even apply for UK visa, since he was not so keen on covering UK portion of the tour in spite of being given options to travel on another date, he himself decided to travel to other places excluding UK.  Ongoing through all these facts, as stated by Ops in its version and also in its reply letter to the notice sent by the Complainant, we come to the conclusion that, Complainant violated the terms & conditions of the tour programme prepared by the Ops. When such being the fact, the claim made by the Complainant with regard to direct the Ops to pay a sum of Rs.5,65,291/- with interest at 12% p.a. has no legs to stand since he has already enjoyed the tour arranged by the Ops. Accordingly we answered the point no.2 in the negative.

 

13. Point no.3: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is dismissed devoid of any merits.

 

          2. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 19^th May 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Anand Chintappali Srinivas, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Brochure – 13 days magical Europe tour
Ex-A2	Booking form dtd.28.03.14
Ex-A3	Tour information sheet
Ex-A4	Final payment details
Ex-A5	Ticket confirmation details dtd.12.05.14
Ex-A6	Visa details dtd.12.05.14
Ex-A7	Room booking details dtd.13.05.14
Ex-A8	Lawyer’s notices dtd.14.06.14
Ex-A9	2 Postal acknowledgements
Ex-A10	4 Unserved postal envelopes
Ex-A11	Reply from Op.no.1

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.Avanendra Avuthu, who being the Authorized Signatory of Ops was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

NIL -

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT