PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of January 2012
Filed on :05/06/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No.333/2010
Between
1. S.A.S. Navas, :Complainants
S/o. Late S.A.Shakur, (By Adv. M.K.Dileepan,
Res. At Flat No. 10 D, IInd Floor, Manchu Complex,
Sylvan Heights, Chilavannur road, P.T. Usha road, Ernakulam
Kadavanthra P.O., Cochin-682 020. Kochi-682 011)
2. Sadhan Dutta,
S/o. Llalte Kshetra Mohan Dutta,
Res. At SBI Officer’s Quarters,
Flat No. 305, Block A,
19 Convent road, Calcutta-700 014.
3. Joseph Mukkadail Luiz,
S/o. Late N.G. Joseph, Res.
At Flat No. 3D, Link Horizon,
Marine Drive, Cochin-682 -035.
4. Kallupalathinkal Oouthuppan Thomas,
S/o. Late Oouthuppan
Res. At Kallupalam,
Wood House Garden, Chilavannur
road, Kadavanthra, Cochin-682 020.
5. Liziamma Thomas,
W/o. K.O. Thomas,
res. at Kallupalam, Wood House
Garden, Chilavannur
road, Kadavanthra, Cochin-682 020.
6.Eralil Chandy Prince,
S/o. Late E.I. Chandy,
Resi. at Flat No. 9C,
Sylvan Heights, chilavannur road,
Kadavanthra P.O., Cochin-682 020.
7. Mary Prince, W/o. E.C. Prince,
Resi. at Flat No. 9C Sylvan
Heights, Chilavannur road,
Kadavanthra P.O., Cochin-682 020.
8. Thonduparambil Punnoose Joseph,
S/o.Late T.P. Punnoose,
C/o. K. Paul Joseph,
Res. at Flat No 11 D, Infra Hamlin,
Doctor’s Lane, Vidya Nagar,
Cochin-682 020.
9. Kannarkat Paul Joseph,
S/o. Late K.P. Pappan,
Res. at Flat No. 11 D Infra Hamlin,
Doctor’s Lane, Vidya Nagar,
Cochin-682 020.
10.Roy Joseph,
S/o. Late M.P. Joseph,
Res. at Mullaparambil,
Maradu P.O., Cochin-682 304
11.Mukkadail Joseph Joseph,
S/o. Late N.G. Joseph,
Res. at Mukkadayil house,
Convent road, Cochin-682 015.
12.Sanil Sivadas,
S/o. Shri. K. Sivadas,
Res. at 5/2880A, Aparna,
Thiruthiyad, Calicut-673 032.
13.Arjundas Vijaya Kumar,
S/o. Late Arjundas Hulla,
Res.. At Flat No.6B,
Galaxy Apartments,
Red Croass road,
Calicut-673 032.
Vs
1. M/s. Akbar Travels and M/s. : Opposite parties
Bency Holidays, (O.P.1,2,4and5 by Adv.V.P.
Rep. by the Chief Executive Officer, Reghuraj,Anns Apartment,
K.V. Hidayathulla, Amulya Street. Ernakulam,
C/o. M/s. Akbar Travels-6971, Kochi-18)
Jinjikar Street,
Near Craword Market,
Mumbai-400 003.
2. General Manager India
M/s. Bency Holidays,
Akbar group 178, 1st Floor,
Kavarana Mansion, Dr. B.R. Ambedker
Marg. Dadar T.T., Mumbai.
3. Manager Operation,
M/s. Bency Holidays,
Akbar group 178, 1st floor,
Kavarana Mansion,
Dr. B.R. Ambedker
Marg. Dadar T.T., Mumbai.
4. M.Toms Varghese, Area Manager,
M/s. Akbar Travels 39/5653/D,
Vallamattam Estte, Ravipuram,
Cochin-15.
5. P.R. Praveen Manager,
M/s. Bency holidays
(Akbar group)39/5653/D,
Vallamattam Estate,
Ravipuram, Cochin-15.
O R D E R
A Rajesh, President.
The case of the complainants is as follows:
The complainants along with other players from various parts of India traveled to Rio de Janeiro, Brazil to participate in the 14th World Vetaran’s Table Tennis championships held from 25th to 30th May 2008. The 4th opposite party provided the complainants with a quotation cum-itinerary for a five night six days Europian tour during on their return from Brazil i.e. from 31-05-2008 onwards at a cost of Rs. 50,500/- each equated to 800 Euro. The 1st itinerary was modified on 01-06-2008 by the 4th opposite party. The complainants paid the tour cost in advance.
The following deficiency in service was occasioned to the complainants in their dealings with the opposite parties.
a. The opposite parties have collected an amount of Rs. 24,300/- in excess of the agreed amount of Rs. 7,57,500/-.
b. Nobody was there at the Paris International Airport to receive the complainants. The complainants had to suffer bitter experiences at the hands of the driver of the coach and staffs of the hotel.
c. The complainants had to purchase tickets for Seine River boat ride on their own.
d. The complainants purchased tickets to visit Eiffel Tower
e. The driver did not take the complainants to the restaurant for the paid dinner. They had to pay for the same on their own.
f. The complainants had to hire taxi to visit Amsterdam
g. The Stop-over at Brussels had to be cancelled
h. On several occasions the complainants were detained from checking out by the hotel management for want of settling of bills.
i. Many sight seeing trips, dinner etc. were missed due to lack of proper arrangements by the opposite parties.
On account of the breach of contract and deficiency in service on the part of the opposite parties the complainants suffered a consolidated liquidated damages of Rs. 2,50,000/- and unliquidated damages to the tune of Rs. 1,00,000/- each. The opposite parties are liable to pay the above amounts to the complainants. Hence this complaint.
2. The version of the opposite parties 1 and 2.
The 4th and 5th opposite parties are employees under the 1st and 2nd opposite parties. The tour programme was arranged by World Avenues Travel Services, 60, Crawford Street, London. The complainants booked the programme through the opposite parties. The opposite parties received 800 Euro (Rs.50,500/-) per head totaling Rs. 7,57,500/- from the complainants. The opposite parties paid Euro 10000 on 22-05-2008 and Euro 1645 on 27-06-2008 to World Avenues towards the service charges for the tour. The opposite parties are entitled to get the balance sum of Rs. 34,360/- from the complainants. At the instance of the complainants the opposite parties booked the ticket for the complainants. Out of the booking charges of Rs. 47,42,361/- the complainants have paid only Rs. 46,69,961/-. The balance amount of Rs. 72,400/- is due from the complainants. On 31-05-2008 the Air India flight carrying the complainants landed at Paris terminal 2C only at 18.20 hours, late by 3 hours. The coach to carry the complainants had reached at the
Air Port one hour before the expected arrival time and waited till
19.20 hours in the parking area and took the complainants to the hotel. Though the driver was ready to take the complainants to the restaurant for the arranged driver, the complainants refused the same for their own reasons. On the next day 01-06-2008 the driver took the complainants to the city tour exactly by 10 a.m. as scheduled. Even though the driver was ready to pay for the tour, the complainants refused the same and made payments directly. The boat ride at Seine River was arranged and the driver was ready to pay as well for the ride, the complainants refused and made payments directly. Again the complainants opted to purchase tickets for the visit Eiffel Tower. As directed by the complainants only they were taken back to hotel. Later the 1st complainant called on the 1st opposite party and required to change the driver. The World Avenue assured and agreed to change the driver on 03-06-2008 since they could not change the driver on Saturday and Sunday being holidays. On 02-06-2008 the complainants were not ready to travel in the coach provided by the opposite parties to go to Amesterdam they decided to go on their own for reasons thereon. The World Avenue changed the driver for the further trip and subsequent itinerary on 03-06-2008, 04-06-2008 and 05-06-2008 went smoothly. All the hotel bills were paid well in time and there was no occasion to detain the complainants at the hotel. This complaint is intended to evade the payment of the amount due to the opposite parties and the complaint is devoid of any merit and is liable to be dismissed.
3. Apart from the contention of the 1st and 2nd opposite parties, the 4th and 5th opposite parties stated in their version that Air India and World Avenues are necessary parties to the complaint and the complaint is not maintainable for non joinder of necessary parties.
4. Despite service of notice from this Forum the 3rd opposite party did not respond to for his own reasons. The 1st complainant was examined as PW1 and Exts. A1 to A9 were marked on the side of the complainants. The 4th and 5th opposite parties were examined as DWs 1 and 2. The witness for the opposite parties 1, 2,4 and 5 were examined as DW3 and Exts. B1 to B7 were marked on the side of the opposite parties. Both sides filed argument notes. Heard the counsel for the contesting parties.
5. The points that arose for consideration are
i. Whether the complaint is barred for non-joinder of necessary
parties.
ii. Whether the complainants are entitled to get liquidated
damages of Rs. 2.5 lakhs from the opposite parties.
iii. Whether the complainants are entitled to get unliquidated
damages of Rs. 1 lakhs each from the opposite parties.
6. Point No. i. The 4th and 5th opposite parties took a contention in their version that the tour programme was arranged by World Avenues, Travel Services 60, Drawford Street, London. However in none of the documents or in their communications they have not stated the same. The opposite parties gave an impression to the complainants that they are conducting the tour programme on their own. Moreover the privity of contract is in between the complainants and the opposite parties. So the above contention of the opposite parties goes. Again the opposite parties maintain that since the inconvenience if any caused to the complainants is solely due to the late arrival of the flight operated by Air India. The allegations and averments in the complaint go to show that the grievances of the complainants are against the deficiency in service on the part of the opposite parties not for the delay in their arrival in Paris on evidence uncontroverted. So this contention as well is unsustainable. However the maintainability of the complaint in this Forum is sustained.
7. Points ii & iii. The 1st complainant who was examined as PW1 speaks for ;the other 12 complainants deposed in tune with the averments in the complaint. The 4th and 5th opposite parties who were examined as DWs1 and 2 fully supported the case of the opposite parties DW3 is a person who accompanied the complainants from India to Brazil and from Brazil to Paris. Even according to him he was ousted from the tour party for reasons best known to the parties, according to the complainants it was due to the fault of himself however DW3 claims otherwise. Since he had opted to quit the company of the complainants from the airport itself, we think that his evidence need not be helpful for this Forum to dispose off this complaint.
8. Admittedly Ext. A1 is the itinerary of the tour package from 31-05-2008 to 05-06-2008 which reads as follows:
“DAY 1:31:05.2008
. 15:20 ARRIVE PARIS
.16:30 PICK UP FROM AIRPORT AND PROCEED TO HOTEL
.15:30 ARRIVING TO HOTEL
.17:30 TRANSFER FOR DINNER AT INDIAN RESTAURANT
. OVERNIGHT PARIS
DAY 2: 01.06.2008
.07:00 CONTINENTAL BREAKFAST AT HOTEL
.09:00 HALF DAY CITY TOUR WITH ENGLISH SPEAKING GUIDE
.13:00 PROCEED FOR LUNC AT INDIAN RESAURANT
(INCLUDED)
.15:00 SEINE RIVER CRUISE (INCLUDED)
.17:00 EIFFEL TOWER LEVEL 3 (INCLUDED)
.19:30 DINNER AT INDIAN RESTAURANT (INCLUDED)
.OVERNIGHT PARIS
DAY 3:02-06-2008
.07:00 CONTINENTAL BREAKFAST AT HOTEL
.08:00 DEPART FOR BRUSSEL
.12.00 LUNCH AT INDIAN RESTAURANT (INCLUDED)
.13.30 HALF DAY CITY TOUR WITH ENGLISH SPEAKING GUIDE
(INCLUDED)
. 16.30 PROCEED TO AMSTERDAM
.OVERNIGHT AMSTERDAM BASTION
DAY 4:03-06-2008
.07:00 CONTINENTAL BREAKFAST
.08:30 MADURODAM (INCLUDED)
.12:30 LUNCH AT INDIAN RESTAURANT (INCLUDED)
.13:30 CHEESE AND CLOG FACTORY (NCLUDED)
.15:30 COASTER DIAMOND (INCLUDED)
.17:00 CANAL CRUISE (INCLUDED)
.19:30 DINNER AT INDIAN RESTAURANT (INCLUDED)
.OVERNIGHT AMSTERDAM BASTION
DAY 5:04-06-2008
.07:00 CONTINENTAL BREAKFAST AT HOTEL
.08:30 PROCEED COLOGNE VISIT COLOGNE CATHEDRAL
.13:00 LUNCH AT INDIAN RESTAURANT IN COLOGNE
(INCLUDED)
.14:00 PROCEED TO FRANKFURT
.16:00 ARRIVE AND ORIENTATION TOUR OF FRANKFURT
.19.30 DINNER AT INDIAN RESTAAURANT (INCLUDED)
.OVERNIGHT SHERATON CONGRESS HOTEL FRANKFURT
DAY 6:05-06-2008
.CONTINENTAL BREAKFAT AT HOTEL
.TRANSFER TO AIRPORT FRANKFURT”
DAY 6: 05-06-2008
. CONTINENTAL BREAKFAST AT HOTEL
. TRANSFER TO AIRPORT FRANKFURT
9. However according to the complainants the following shortfalls have occurred.
a. The complainants averred that the opposite parties collected an amount of Rs. 24,300/- in excess of the agreement cost for the tour package. Ext. A2 pax and hotel description dated 22-05-2008 goes to show that the opposite parties have accepted a total amount of Rs. 7,81,800/- from the complainants. Admittedly the above amount was for 15 persons. The opposite parties collected a sum of Rs. 24,300/- totaling from the opposite parties in excess. The complainants are entitled to get refund of the same.
b. Admittedly the flight was delayed by 3 hours. Naturally the driver had to park the vehicle in the parking area and there was some delay in picking up the complainants. For the same reasons the same is redressed by itself. The complainants took another contention that the staffs of the hotel did not even care to take the luggage of the complainants. The opposite parties did not controvert the same. The above conduct on the part of the hotel amounts to serious deficiency in service especially since the complainants are from foreign country and in one they have been denied sufficient service.
c. As per Ext. A2 itinerary the opposite parties are to meet the expenses of the complainants during the tour for which they have already paid. The opposite parties contended that though the driver agreed to purchase the tickets the complainants refused to accept the offer. We can’t sustain such a contention especially when the tour package was a pre-paid one. Ext. A3 series goes to show that the complainants had to expend a sum of 156 Euros for ticket to visit Eiffel Tower, 56 Euros for Seine River cruise and 180 Euros for dinner on 31-05-2008 and 63 Euros on 01-06-2008 respectively. No satisfactory explanation is forthcoming on the part of the opposite parties as to the reasons for the retraction of the opposite parties from Ext. A2 itinerary. The opposite parties are liable to refund the amount as per Ext. A3 series to the complainants. Ordered accordingly.
d. This point has already been answered in point No. C, nothing further.
e. This point as well has been answered in point C.
f. According to the complainants they had to avail bus service to go to Amsterdam since the driver failed to take them to the spot. The explanation of the opposite parties is that the complainants refused to use coach facility arranged by the opposite party. The averment of the opposite party is unbelievable since they have already paid for the services whereas the opposite parties have sustainably not provided the facility as contracted. The opposite parties are legally bound to refund the amount as per Ext. A5 to the complainants being the transportation expenses.
g. The complainants stated that the stop-over at Brussels had to be cancelled. The same has not been disputed by the opposite parties which goes to show that deficiency of service is admitted.
h. Though the complainants contended that on several occasions they were detained from checking out from the hotel by the hotel authorities for want of settling bills, nothing is on record to sustainable the same on both sides.
i. Finally, the complainants maintain that many sight seeing trips dinning etc. were missed due to lack of proper arrangements by the opposite parties. But they have not stated the exact name of the places, trips etc. in the complaint. The said complaint is vague and so can not be resolved at good law.
j. Ext. A6 need not show that the complainants had to contact the tour operator by telephone to highlight their grievance to which they had to incur expenses. The opposite parties are liable to refund the same.
10. Considering the evidence in totality it can be seen that the complainants had to run from pillar to post to get their grievance redressed in a foreign land which evidently goes to show that there has been deficiency in service on the part of the opposite parties which invariably calls for compensation as prayed for.
The Hon’ble National Consumer Disputes Redressal Commission held in Cox and Kings Pvt Ltd. Vs. Col. S.P. Putchala and another IV 2010 CPJ 63 (NC) that the members of the tourist group are entitled to get compensation for the deficiency in service on the part of the tour operators.
11. The opposite parties contended that they have duly paid the amount collected from the complainants to World Avenue the service provides as per Exts. B1 to B3, B5 and B6 to meet the expenses for the tour programme. It is open to the opposite parties to claim refund of the amount for the unavailed services as claimed out of the amounts expended by the complainants from their principal World Avenues especially so the 4th opposite party who was examined as DW1 deposed that they are the agents of World Avenues.
12. In the result, we partly allow the complaint and direct as follows:
i. The opposite parties shall pay the proportionate amount of Rs. 24,300/- to the 13 complainants out of the 15 participants in the tour package the other 2 having not been contestants.
ii. The opposite parties shall jointly and severally refund the amounts proportionately as per Ext. A3 to A6 in Indian currency with interest @ 12% p.a. from the date of complaint till payment.
iii. The opposite parties shall jointly and severally pay an exemplary compensation of Rs. 20,000/- each to the complainants for the unnecessary mental agony which could have been avoided.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order failing which the above amounts shall carry interest @ 12% p.a. till payment.
Pronounced in the open Forum on this the 31st day of January 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Copy of tour Itinerary
A2 : Copy of invoice
A3 : Copy of bills and tickets
A4 : Copy of vouchers for
hiring taxi.
A5 : True copies of bus tickets
A6 : True copies of Telephone
Bills
A7 : True copy of registered
notice dt. 28-06-2008
A8 : Postal acknowledgement
Cards
A9 : E-mail dt. 23-09-2011
Opposite party’s Exhibits :
Ext. B1 : Benzy Holidays
B2 : Copy of Hotel
voucher dt. 28-04-2008
B3 : Copy of hotel voucher
dt. 28-04-2008
B4 : Copy of operation team
contact details
B5 : Copy of letter dt. 22-05-2008
B6 : Copy of letter dt. 27-06-2008
B7 : Copy of client statement
Depositions:
PW1 : S.A.S Navaz
DW1 : Praveen P.R.
DW2 : Toms Varghese
DW3 : A.A. Ismail
