BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Complaint Case No. :255 of 2018.
Date of Institution : 15.10.2018.
Date of Decision : 12.06.2019.
Seeta Rani aged 52 years wife of Shri Vijay Kumar resident of C/O Bihari Lal Kishori Lal, 17, IInd Addl.Mandi Sirsa District Sirsa.
……Complainant.
Versus
1.Mahesh Kumar, Franchisee Owner, Cox & Kings Ltd. Old Civil Hospital Road, Near Chawla Attachi House, Sadar Gate Sirsa.
2.Tajpartap Vishwakarma, Senior Executive, Cox and Kings Limited, Vaman Centre, Marol Makwana Road, Marol, Andheri (E), Mumbai 400059.
3.Cox & Kings Limited, Vaman Centre, Marol Makwana Road, Marol, Andheri (E), Mumbai 400059, through its Authorized signatory.
……Opposite Parties.
Complaint Under Section 12 of the Consumer Protection Act.
BEFORE: SH.R.L.AHUJA…………………………PRESIDENT
SH.ISSWAM SINGH SAGWAL………..MEMBER
MRS.SUKHDEEP KAUR…………………MEMBER
Present: Sh.J.B.L.Garg, Adv. for complainant.
Sh.Sandeep Tank, Adv. for Op No.3.
OP Nos. 1 & 2 exparte.
ORDER
The complainant has filed the present complaint with the averments that the Op No.1 had offered a tour of 4 nights and 5 days at Switzerland commencing w.e.f. 3rd July, 2018 and the amount to the tune of Rs.6,31,200/- plus interview charges were settled. The complainant paid the entire amount of Rs.6,31,200/- to the Op No.1 and Op No.3 on 24.04.2018, 26.04.2018, 15.06.2018, 20.06.2018 and 26.06.2018 and Rs.23,400/- were also charged from the complainant as interview expenses. On 22.06.2018, the Swiss Embassy had refused the visa application of the complainant on the ground that justification for the purpose and conditions of the intended stay was not provided but despite that the Ops got deposited the amount of Rs.4,01,200/- (out of total amount of Rs.6,31,200/-). The complainant had provided all the requisite details and information about purpose and staying at Switzerland. After refusal of visa, the complainant demanded back the amount for the tour package but the Ops have refused for the same. The complainant got served legal notice upon the Ops but to no avail as the Ops have wrongly and illegally withheld the amount of Rs.6,31,200/- plus Rs.23,400/- as interview charges. The act and conduct of the Ops clearly amounts to deficiency in service on their part.
2. On notice, Ops appeared and filed joint reply, whereby it has been submitted that there is no cause of action wholly or in part that arose in favour of the complainant; that this Forum has no jurisdiction to try and entertain the present complaint; that the complainant has not come to this Forum with clean hands and there is no deficiency in service on the part of Ops. The customized tour was of 5 days with departure date of 4th June, 2018 for 4 people and the son of the complainant after understanding the terms and conditions of tour signed the same on behalf of himself, complainant and other members. The Op No.1 had sent various emails to the complainant to follow up regarding visa requisite documents but the daughter of the complainant informed the Op No.1 that they want to cancel the booked tour No.1. As per agreed terms and conditions, the cancellation charges were Rs.89,000/- and the complainant paid booking amount of Rs.80,000/- on 24.04.2018, thus vide mail the complainant was requested to pay Rs.9,000/-. Lateron, the complainant again approached the Sirsa Franchise office and re-booked the same tour having same itinerary with the departure dated 3rd July, 2018 and the total tour cost was of Rs.5,49,212/- for 4 people. The terms and conditions are legally binding contract between the complainant and Ops. The total paid amount was Rs.6,31,200/- and out of which Rs.80,000/- were for tour No.1. The complainant had paid the amount of Rs.4,01,200/- on 23.06.2018. Vide email dated 27.06.2018, the Ops had sent the visa refusal letter dated 22.06.2018 to the complainant. The Embassy/Consulate is an autonomous body and grant/rejection of visa is the sole discretion of concerned embassy/consulate and the Ops only act as a facilitator. As per agreed and duly signed terms and conditions of tour No.2, if the tour is cancelled due to any reason whatsoever, the company shall not be liable to pay any compensation, interest damages and 100 % cancellation amount is applicable if the tour is cancelled. There is no deficiency in service on behalf of the Ops. Other contentions have been controverted and prayer for dismissal of the complaint has been made. Op No.1 did not appear before this Forum despite service, therefore, it was proceeded against exparte on 05.12.2018 whereas notice sent to the Op No.2 through registered post did not return after elapsing of stipulated period of 30 days, therefore, it was also proceeded against exparte on 05.12.2018.
3. Thereafter, the parties have led their respective evidence.
4. We have learned counsel for the complainant and gone through the material available on the case file.
5. The complainant in order to prove his case has furnished her affidavit Ex.CW1/A, in which she has reiterated all the averments made in the complaint and has also tendered documents such as transaction details Ex.C1, visa refusal Ex.C2, rebooking of tour Ex.C3, emails Ex.C4, Ex.C5, flight details and schedule Ex.C6, Ex.C7, statement of account Ex.C8, legal notice Ex.C9, postal receipts Ex.C10 to Ex.C12, reply to notice Ex.C13, email Ex.C14, refusal/annulment revocation of VISA Ex.C15 to Ex.C18, and appointment letter Ex.C19. On the other hand, the Ops have tendered affidavit of Sh.Ashish Gupta, Ex.RW1/A, whereby he has reiterated the facts mentioned in the reply and also tendered documents resolution Ex.R1, terms and conditions Ex.R2 to Ex.R21, massage details Ex.R22 to Ex.R25, important note of VISA, terms and conditions Ex.R26 to Ex.R49, refusal annulment revocation of VISA Ex.R50, Ex.R51, email Ex.R52, Galileo Ticket Ex.R53 to Ex.R60, voucher for booking details Ex.R61 to Ex.R66.
6. It is an undisputed fact between the parties that the Ops No.1 & 2 had arranged a tour of Switzerland of 4 persons consisting of complainant, his wife and two children and the complainant had submitted all the requisite papers for getting the visa and had deposited Rs.6,31,200/- with the Ops. As per allegations of the complainant, the VISA was refused by the embassy of the Switzerland on 22.04.2018, but however, the Ops called upon the complainant to deposit remaining amount of Rs.4,01,200/- despite well known to the fact that their VISA has already been refused and the Ops have not refunded the said amount to the complainant despite repeated demands. On the other hand, there is specific plea of the Ops that earlier also the complainant had got booked the same pour prior to the dates fixed for the present tour and same was also got cancelled and further a sum of Rs.89,000/- was claimed as cancellation charges from the complainant family, but however, the complainant had paid Rs.80,000/- as booking amount on 24.04.2018 and remaining amount was to be paid by the complainant family. This the second tour, which was got booked by the complainant and due to non-supply of the proper information to the embassy, VISA of the complainant and others were refused and there is no fault of the Ops in getting the VISA of the complainant and others etc. refused. The complainant is not entitled for the refund of the amount as the Ops have got booked the air tickets, hotel and other necessary arrangements and have paid al the amount to the concerned.
7. The perusal of the evidence of the Ops reveals that the Ops have placed on record the copy of booklet having all the necessary terms and conditions of the contract which was allegedly signed by Nikhil Aggarwal on 26.04.2018 an which was allegedly signed by the present complainant Sita which reflects the terms and conditions of the tour contract. The Ops have also placed on record, the copy of the refusal, termination of VISA letter Ex.R50 to Ex.R66 but the Os have not placed on record any proof on record regarding making of payment on behalf of the complainant to the air port, hotel and other service providers. The Ops have further not placed on record any letter of cancellation written to all these aforesaid quarters regarding cancellation of the booking and making the refund of the amount which they have deposited to get the services for the complainant and others. Though, the Ops have relied upon the terms and conditions, which were actually signed by the complainant Sita Devi, but however, the perusal of these terms and conditions reveals that these are one sided terms and conditions and are arbitrary and illegal from the fact of it.
8. Since, it is proved fact on record that the documents for the issuance of the VISA were submitted to the Ops and they had prepared the requisite forms etc. in order to get clearance of the VISA , but however, the same was refused by the concerned embassy on 22.04.2018, but however, the letter of refusal was sent to the complainant on 27.04.2018 and further the payment of Rs.4,01,200/- was got received by the Ops vide cheque dated 23.05.2018 which was cleared on 26.05.2018 and this fact also finds mentioned in the written statement of the Ops. Once, this fact was within the knowledge of the Ops that the VISA of the complainant and others have been refused then under what circumstances the Ops called upon the complainant to deposit the remaining amount of Rs.4,01,2000/-. Perusal of the affidavit Ex.RW1/A of Sh.Aashish Gupta, reveals that he has not uttered a single word about the cancellation of the booking of hotel, air tickets and other services providers nor he has deposed that what amount of loss they have suffered in getting of these services cancelled. Moreover, the complainant has not availed any services of the Ops qua travelling, ticket facilities, hotel facilities. So, it appears that this is unfair trade practice and deficiency in service on the part of Ops.
9. In view of the above discussion, we allow the present complaint and direct the Ops to pay a sum of Rs.6,31,000/- within a period of 30 days from the date of receipt of the copy of this order. We also direct the Ops to pay a sum of Rs.15,000/- on account of deficiency in service and Rs.2000/- as litigation expenses to the complainant. If, the orders are not complied within 30 days, then the awarded amount would carry interest @ 7 % per annum from the date of order till its realization. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:12.06.2019. District Consumer Disputes
Redressal Forum, Sirsa.
Member Member
DCDRF, Sirsa DCDRF, Sirsa
