Tamil Nadu

StateCommission

CC/92/2011

R.Suyambhu Anandhan & 5 others - Complainant(s)

Versus

M.s. Cox & Kings , Rep. by its Manager & another - Opp.Party(s)

K.Rajasekaran

23 Apr 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                                   BEFORE : HON’BLE THIRU JUSTICE R.REGUPATHI    PRESIDENT

                                                      THIRU.J.JAYARAM                                JUDICIAL MEMBER 

                                                      TMT.P.BAKIYAVATHI                             MEMBER

C.C. No. 92 / 2011

Dated this the 23^rd day of APRIL, 2015

1. R. Syamb Ananthan,                                

    S/o Ramasamy                                

2. S. Chitra,                                       

    W/o R. Syamb Ananthan                   

3. S. Pradheep,                                  

    S/o R. Syamb Ananthan                   

4. S. Janani,                                      

    D/o R. Syamb Ananthan                   

5. P. Muruganantham,                          

    S/o Paul Durai                                

(All are residing at No.162/5, Mangalam

Colony, Anna Nagar West, Chennai-40) 

(Complainants 3 & 4 are represented by

their father and natural guardian:          

R. Syamb Ananthan)  

6. A. Shafic Ali Ahamed,                       

    S/o S. Ahemed Hassan,                    

    No.901-C, Bell Colony,                    

    Opp. District Court, Palayamkottai,    

    Tirunelveli District                           ..     Complainants

Vs

1. Cox & Kings,                                  

    No.10, Karuna Corner,                     

    Spur Tank Road,                             

    Chetpet,                                                

    Chennai – 600 031,                         

    Represented by its Manager              

2. Cox & Kings,                                  

    No.16, Bank Street,                         

    Fort,                                             

    Bombay – 400 001,                         

    Represented by its                          

    Deputy Manager (Legal)                    ..     Opposite Parties

Counsel for Complainants          : M/s.K.Rajasekaran

Counsel for opposite parties        : M/s.Mothilal,Goda & Kalliat  

              This case was disposed of by this commission on merits on 25.09.2013.  Both the parties preferred appeals before the Hon’ble National Commission in F.A.No.779/2013 and F.A.12/1014 and both the appeals were disposed of by the Hon’ble National Commission on 26.05.2014.  The Hon’ble National Commission set aside the order of this Commission and remanded the case to the commission for fresh disposal, with the direction to this commission to call both the parties and to give an opportunity to produce further evidence and to pass fresh order on merits. As per the direction of the Hon’ble National Commission both the parties appeared before this Commission and the complainants filed additional written arguments and they did not file any further documents or any additional proof affidavit.  The opposite parties filed an Additional Proof affidavit and filed an additional document marked as Ex.B6. On hearing the arguments of both sides and upon perusing the material records, this Commission made the following Order:

J. JAYARAM, JUDICIAL MEMBER

        The case of the complainants is as follows:

          The 1^st & 2^nd complainants are husband and wife, the 3^rd complainant is their son, the 4^th complainant is their daughter, the 5^th complainant is their close relative, and the 6^th complainant is their family friend. The complainants had arranged a foreign tour covering Thailand and Singapore for a week in May, 2011 for which the complainants had paid an initial amount of Rs.1,20,000/-; and subsequently paid sums of Rs.1,00,000/- and Rs.3,41,000/-, and thus, a total sum of Rs.5,61,000/- was paid. The complainants were of 5 adults and one child who is the 4^th complainant / daughter aged 11 years. The first opposite party instead of booking flight tickets and making arrangements for 5 adults and one child in a single group, they arranged 4 adults + 1 child in one group and another separate single ticket for one adult, thus they were divided into two groups, as a result of which right from the beginning when they boarded the flight from Chennai till they returned, they suffered a lot and they could not be together in one group and so they had to omit certain events and they  had to spend extra money for travel in vehicles, lodging and hotels. The complainants have narrated the following facts pointing out the unfair trade practice, gross negligence and the deficiency in service on the part of the opposite parties.

           “a)    Not treating the 1^st complainant properly at the office of the first opposite party;

b)     Treating the 1^st complainant indifferently and showing more interest on the Cricket Match that was telecast on the Televisions installed at the office of the first opposite party;

c)      Not blocking the tickets together for our 6 family members as a single family unit;

d)     By blocking a separate ticket for the 2^nd complainant and mother of the 3^rd and 4^th complainants was forced to be treated as an outsider and therefore, her luggage was not counted with the luggage of our other family members;

e)     Not even informing about the programme and schedule well in advance or at least one week before the actual tour;

f)      Crystallizing everything only on 4/5/2011 at 5.30 in the evening when the flight was to leave for Bangkok at 12.00 mid night on 5/5/2011

g)     Failure to give the Air tickets while giving the other papers to the first complainant;

h)     When informed instead of sending a messenger to hand over the air tickets, asked the first complainant to send a person to receive the tickets;

i)      The opposite parties while informing the Thailand representative that the services were for 5+1, failed to do so, while informing the Singapore representative;

j)      The opposite parties intimating the Singapore representative to services for only 4+1 after receiving the money for 5+1;

k)     Made the complainants to pay additional charges for local tour in Singapore at the Universal Studios and also at all places where they were refused to be accommodated as they were 5+1;

l)      Accommodated the complainants 1 to 6 in a filthy hotel even though it was promised that they would be accommodated in a three-star superior hotel;

m)     Not providing them with Indian food even though it was promised; and forcing them to eat elsewhere by spending money from their own pockets;

n)     Opposite parties not returning the money after deducting the cancellation charges for alternative flight;

o)     Opposite parties not attending to our complaint and instead showing contempt and ditching them after the tour was completed.

p)     Opposite parties making the complainants to pay extra for their morning breakfast during their stay in Singapore;

q)     Opposite parties forcing them to change the hotel and to spend money for four nights;

r)      Opposite parties even now not returning the cost of the package for one adult to them”

2.     Besides the above, the complainants suffered mental and physical agony and issued a notice dated 29-6-2011, to the opposite parties calling upon them to pay a sum of Rs.50 Lac as compensation; but the Opposite parties offered to pay only a sum of Rs.1,42,303/- as compensation which the complainant did not accept. Hence the complaint, praying for direction to the Opposite parties to pay a sum of Rs.50,00,000/- (Rupees Fifty Lac) for negligence, deficiency in service and mental agony.

3.     The Opposite parties filed version stating as follows:

The complainants initially paid a sum of Rs.1,20,000/- only on the date of booking and they subsequently paid a sum of Rs.3,41,000/- on 4-5-2011 i.e. only prior to the departure violating the terms and conditions of the tour which says that balance payments towards cost of the tour must be paid to the Opposite parties at least 45 days prior to the departure of the tour. Further, as per their liabilities clause contained in the terms and conditions, they are not liable for any omissions or commissions on the part of the Opposite parties, and that they are not liable for any deficiency in service on their part. In response to the legal notice sent by the complainants, they offered to settle the matter on payment of Rs.1,42,303/-, but the complainants did not agree and there is no deficiency in service on their part and hence they are not liable to compensate the complainants.

4.     The complainants filed proof affidavit along with 16 documents which were marked as Ex.A1 to A16 on the side of the complainants. Proof affidavit was filed by the opposite parties along with 5 documents which were marked as Ex.B1 to B5 on the side of the opposite parties and now as permitted by the Hon’ble National Commission, the opposite parties have filed an additional proof affidavit along with an additional document which was marked as Ex.B6.  No additional proof affidavit or additional document was filed by the complainants.

5.     The points for consideration are:

(i)     Whether there is deficiency in service on the part of the opposite parties as alleged in the complaint;

(ii)    To what relief the complainants are entitled?.

6.      POINT NO.1 :Admittedly, the complainants were 5 adults and one child and in total they were 6 in number. It is pertinent to note that the opposite parties inadvertently booked the tickets only for 5 persons viz. 4 adults + 1 child in one group and one separate ticket for one adult in a separate group, and thus, as admitted by the opposite parties, the 6 persons were divided into two groups. This amounts to gross deficiency in service on the part of the opposite parties.

7.      We find that consequent on the division of the complainants in two groups right from their travel from Chennai until they returned to Chennai, obviously they have suffered a lot mentally and physically and in Singapore they had to pay extra  money for travel in vehicles, boarding and lodging since the opposite parties had arranged all facilities including boarding, lodging and travel only for 4+1, omitting another adult and it goes without saying that due to the negligence and deficiency in service on the part of the opposite parties, the entire tour was not enjoyable to the complainants and the journey was an unpleasant experience for them. Therefore, apart from mental and physical agony, they had to spend more money.  This amounts to further deficiency in service.   

8.      The opposite parties rely on the liability clause in their terms and conditions in the agreement and contend that they are not liable for any act of commission or omission and they are not liable for any deficiency in service on their part. This clause in the agreement is arbitrary and violative of the principles of natural justice and these conditions are not acceptable and cannot be acted upon and resorted to by the opposite parties. Therefore, the contention of the opposite parties that they cannot be held liable for any negligence or deficiency in service on their part, is untenable.

9.      The further contention of the opposite parties would be that the complainants themselves wanted separate rooms and they wanted to avail more facilities and they did not conduct themselves as per the terms and conditions in the agreement. There is no force in this argument and this contention is unsustainable in the absence of any evidence.

10.    It is relevant to note that, the opposite parties have themselves admitted that the booking was made through two PNRs, one for five persons and the other one for a single person.  As permitted by the Hon’ble National Commission, the opposite parties have now produced Ex.B6 E-mail copy of the message given by them to their agent at Singapore to reserve 01-Triple Sharing basis + with child no bed + 01-Twin Sharing basis and this shows that accommodation is arranged only for five persons and not for six persons.  Perusal of Time Itinerary from Vacation Asia Singapore reveals that the booking was for four adults and one child only and the Universal Studio packages were also booked for four adults and one child only as seen from Ex.A9 in which it is mentioned as follows :

“Day 3 : (09 May 2011) 10.00 hours, Universal Studio tickets “4adults + 1child tickets no transfers”

Therefore it is clearly established that the arrangements at Singapore has been made by the opposite parties only for 4adults and one child, which amounts to serious deficiency in service on the part of the opposite parties.

11.    The opposite parties have further contended that they have sent correct message to their representative at Singapore for 5adults and one child and therefore there is negligence only on the part of their representative at Singapore which cannot be attributed to the opposite parties. The opposite parties cannot evade their responsibility and disown their liability by merely stating that they are not liable for the fault on the part of their representatives in Singapore and in not making proper arrangements. There is no force in this argument and this contention is untenable.

12.    The complainants have raised the following issues :

        “i)   The local representative of Vacation Asia who received the complainants at Singapore Airport informed them that they             will cater to the needs of a family, consisting of four adults and one child only.

        ii)   The local representative told them that he could take only five persons to the hotel.  When the complainants insisted that they were six persons, the local representative went back to seek instructions and brought another car after two hours and took all six persons to the hotel in the evening.

        iii)   At the hotel also, they were told that the accommodation was meant for five persons only.

        iv)   They were also told that the buffet breakfast will be provided to five persons only

        v)     During sight-seeing, the vehicle that came to pick up the complainants, refused to carry all six persons.  In one such trip, the sixth person was allowed entry after payment of 100 Singapore Dollars extra.  In another trip, the sixth person was not allowed, even after making extra payment as there was no seat available in the vehicle for sixth person.”

13.    The opposite parties have not adduced any contra evidence to rebut and disprove the above allegations made by the complainants and the above allegations made by the complainants are quite acceptable, thus establishing further deficiency in service on the part of the opposite parties.

14.    The opposite parties failed to prove by adducing proper evidence that the arrangements done at Singapore for transportation, accommodation and sightseeing were meant for six persons and not for five persons.

15.    Considering the entire materials on record we hold that there is unfair trade practice, negligence and deficiency in service on the part of the opposite parties and the point is answered accordingly.   

16.    POINT NO.2 : The complainants have claimed a sum of Rs.50,00,000/- (Rupees Fifty Lakhs)  towards  total  compensation for the deficiency in service, negligence and for the mental agony suffered by the complainants.

17.    It is seen from the letter of the opposite parties Ex.A13 / Ex.B5 that the opposite parties have offered Rs.1,42,303/- towards full and final settlement but the offer was not accepted by the complainants and the complainants have sent reply to the opposite parties stating that the offer can be considered if the offer is increased by atleast 200%.

18.    The proposal to pay Rs.1,42,303/- towards full and final settlement “without prejudice” basis as follows:

        “1.  Total Air India ticket refund for 06 Pax – INR 41,325

        Refund amount after cancellation per adult INR 7092 X 05 Adults – INR 35,460

        Refund Amount after cancellation per child INR 5865 X 01 Child – INR 5865

        2.   Singapore land package refund – USD 2445 @ 41.30 = INR 100978/-

        USD 375 x 4  = USD 1550

        USD 325 x 1  = USD 325

        Singapore refund for the sixth passenger USD 620

        3.     Total refund Amount for 06 PAX – INR 1,42,303.”

19.    Therefore, having regard to the facts and circumstances of the case and taking into account the offer by the opposite parties to pay Rs.1,42,303/- and considering all other relevant factors we feel that award of Rs.50,000/- to each complainant would be the reasonable compensation  for  mental  agony  and  physical sufferings and further award of Rs.50,000/- in total would be the reasonable compensation for the negligence and deficiency in service on the part of the opposite parties and the point is answered accordingly.

20.    In the result, the complaint is partly allowed directing the opposite parties to pay to the complainants a sum of Rs.1,42,303/- as agreed by the opposite parties and a further sum of Rs.3,00,000/- (Rupees Three Lakhs only) towards the compensation for mental agony and physical sufferings and to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards unfair trade practice, negligence, and deficiency in service on the part of the opposite parties.  The opposite parties shall pay costs of Rs.10,000/- (Rupees Ten Thousand only) to the complainants, (total sum of Rs.5,02,303/-.)

          Time for compliance : two months from the date of receipt of copy of this order and in case of default in complying with the order, the amount of Rs.5,02,303/- shall carry interest at the rate of 9% per annum from the date of default of the complaint till compliance.

 

P.BAKIYAVATHI              J.JAYARAM                      R.REGUPATHI

     MEMBER                   (J) MEMBER                        PRESIDENT

List of Documents filed on the side of the Complainants:

A1     -                       Tour itinerary

A2     02-04-2011          Receipt for Rs.1,20,000/-

A3     04-04-2011          Receipt for Rs.1,00,000/-

A4     04-05-2011          Receipt for Rs.3,41,000/-

A5                             Flight tickets for the entire tour

                                for complainants 1,3 to 6

A6     04-05-2011          Flight tickets for the entire tour

                                for the second complainant

A7     04-05-2011          Flight ticket from Singapore to Chennai

                                booked by way of abundant caution.

A8                             Itinerary issued by the Thailand

                                representative

A9                             Itinerary issued by the Singapore

                                representative

A10   08-05-2011          Tax invoices by Hotel Grand Chancellor,

                                Singapore

A11   29-06-2011          Notice

A12   04-07-2011          Reply by 2^nd opposite party

A13   04-08-2011          Reply by 2^nd opposite party offering

                                INR 1,42,303/-

A14   07-09-2011          Reply notice by the complainants

A15   05-10-2011          Notice by the 2^nd opposite party.

A16   9^th May 2011        Email from the 1^st complainant to

the opposite party.

List of Documents filed on the side of the Opposite Parties:

B1     02-04-2011          Booking form                      

B2     -                       Price grid

B3     04-05-2011          Confirmed service voucher     

B4     29-06-2011          Legal notice

B5     04-08-2011          Reply

List of Addl.Documents filed by the complainants : NIL

List of Addl.Documents filed by the opposite parties :

B6     06-04-2011          Copy of Email sent by the opposite parties to

                                Its Agent ‘Vacation Asia’

 

P.BAKIYAVATHI              J.JAYARAM                      R.REGUPATHI

   MEMBER                     (J) MEMBER                       PRESIDENT

 

INDEX; YES/ NO

VL/D;/PJM/CONSUMER