DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM
Dated this the 28th day of October 2024
Filed on: 24.06.2023
PRESENT
Shri. D.B. Binu Hon’ble President
Shri. V. Ramachandran Hon’ble Member
Smt. Sreevidhia T.N Hon’ble Member
C.C No. 415/2023
COMPLAINANT
Jayaprakash Prabhu, 8/1107, T.D. South Gate Cochin, Ernakulam, Kerala, Pin No.682018
(Rep. by Adv. Sikha G Nair & Adv. S. Arathy Menon, Advocates, Shanti lane, Ravipuram Road, Kochi-16)
OPPOSITE PARTY
M/s Fortune Destination Management (India) Pvt. Ltd., 1st Floor, Mannamthara Tower, Paramara Road, Ernakulam, 682018, Kerala Represented by its Managing Director
(Rep. by Adv. U.K. Devidas, Advocates(D-171), S2, Ruby Court View, Puthullil Lane, Kochi)
FINAL ORDER
D.B. Binu, President
- A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The complainant approached the opposite party, a travel agency located in Ernakulam, to inquire about a Bali tour package for himself and his family, including his wife, son, and daughter, for October 2022. Upon the opposite party's recommendation, a package was booked, and the complainant made several payments, totaling Rs. 2,89,380/-. The son of the complainant, Mr. Jayaram Jayaprash Prabhu, had not been vaccinated against COVID-19, a fact that was communicated to the opposite party. The opposite party assured the complainant that an RT-PCR negative report would be sufficient for travel to Indonesia.
However, a day before the trip, the complainant was instructed to install an Indonesian COVID-19 app, which indicated that a vaccine or doctor's certificate was mandatory for entry. The opposite party reassured the complainant that the RT-PCR report would suffice. Relying on this assurance, the complainant proceeded with the tour preparations.
On the day of travel, after arriving at Thiruvananthapuram airport, the airline prevented the complainant's son from boarding the flight due to the lack of a vaccine certificate, as required by Indonesian authorities. As a result, the complainant had to leave his son behind, causing significant distress and affecting the enjoyment of the family vacation. The complainant had paid Rs. 72,345 for his son's travel, which went unused.
Upon returning, the complainant sought a refund for his son's travel package but received no response from the opposite party, even after issuing a legal notice. The complainant now seeks a refund of Rs. 72,345, compensation for pain and suffering, and legal costs due to the deficiency in service by the opposite party.
2. NOTICE:
The Commission issued notice to the opposite party, but they failed to file their version within the statutory period and were consequently set ex-parte on 27.10.2023.
3. Evidence:
The complainant submitted a proof affidavit along with four documents. The documents in the complaint are marked as Exhibits A1 to A4.
- Exhibit A1: Copy of the travel itinerary and booking details provided by the opposite party.
- Exhibit A2: Copy of the train electronic reservation slip dated 13.10.22.
- Exhibit A3: Copy of the train electronic reservation slip dated 18.10.22.
- Exhibit A4: Copy of the lawyer notice dated 25.11.2022.
4. Points for Consideration:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice by the opposite parties?
iii) If so, whether the complainant is entitled to any relief?
iv) Costs of the proceedings, if any?
5. ARGUMENT NOTE FILED BY SIKHA G. NAIR, COUNSEL FOR THE COMPLAINANT
The complainant approached the opposite party based in Ernakulam, in July 2022 to inquire about Bali tour packages for his family. In August 2022, the opposite party booked a tour package for the complainant, his wife, son, and daughter, scheduled from Trivandrum to Bali via Singapore on 13.10.2022. The total cost was Rs. 2,89,380, of which the complainant paid Rs. 40,000 on 12.08.2022, Rs. 80,000 on 20.09.2022, Rs. 40,000 on 21.09.2022, and Rs. 1,29,380 on 10.10.2022. The complainant’s family was part of a group of 30 passengers. These payments are substantiated by documents submitted and marked as Exhibit A1.
The complainant had informed the opposite party that his son, Mr Jayaram Jayaprash Prabhu, had not taken the COVID-19 vaccine. The opposite party assured the complainant that a negative RT-PCR test would suffice for travel. Following this advice, the complainant's son underwent an RT-PCR test, which came back negative.
On the day before travel, the opposite party instructed the complainant to install an Indonesian mobile application related to COVID-19 protocols, which indicated that a vaccine certificate or doctor's certificate was mandatory for entry. Despite the complainant raising this issue with the tour manager, Mr Sojymon Soviet, he reassured the complainant that the RT-PCR report would suffice. Relying on this, the complainant continued with the travel preparations.
On 13.10.2022, after travelling to Trivandrum and completing baggage clearance, the airline manager at the airport informed the complainant that the tickets had been booked without verifying Indonesia's entry requirements, which mandated a vaccine certificate. As a result, the complainant’s son was prevented from boarding the flight. The complainant was left with no choice but to continue the trip without his son, causing significant emotional distress and impacting the family's enjoyment of the trip. The complainant had paid Rs. 72,345 for his son’s travel, which went unused. These events were documented in Exhibit A1.
Upon returning from the trip, the complainant repeatedly contacted the opposite party to request a refund for his son’s travel expenses. Despite these efforts, the opposite party failed to provide a refund. A legal notice was issued on 25.11.2022, which was received by the opposite party, but they did not respond. The legal notice and details of communications are marked as Exhibit A2.
Summary of Argument:
A) Consumer Relationship
The complainant had booked a tour package with the opposite party for Rs. 2,89,380, with payments made on four different dates. The package was for a family of four, and the complainant's family was part of a group of 30 passengers. Due to the opposite party's failure to verify travel requirements, the complainant's son was unable to travel, indicating a deficiency in service under the Consumer Protection Act, 2019.
B) Deficiency in Service
Under Section 2(11) of the Consumer Protection Act, 2019, deficiency in service includes any fault or shortcoming in the service promised by the service provider. The opposite party misled the complainant by assuring that an RT-PCR negative result would suffice for travel, despite Indonesia's requirement for a vaccine certificate. The opposite party had a duty to verify and inform the complainant of the correct travel requirements, which they failed to do, resulting in the complainant's son being prevented from boarding the flight.
Given the evidence provided in Exhibits A1 and A2, it is clear that the opposite party was negligent in their duties, causing emotional distress and financial loss to the complainant. The opposite party has not responded to the complaint, and no documents from their side have been presented in court.
Conclusion:
The complainant is legally entitled to a refund of Rs. 72,345, along with 12% interest, Rs. 50,000 in compensation for emotional distress, and Rs. 20,000 towards the cost of the proceedings. The commission is requested to allow the complaint as prayed for.
6. NOTES OF ARGUMENTS FILED BY U.K. DEVIDAS, COUNSEL FOR THE OPPOSITE PARTY
The complaint is not maintainable in law or fact. The opposite party, being the Managing Director of a registered company, has been arrayed in his official capacity. Therefore, he is not personally liable, and any legal action should be against the company, not him personally.
The opposite party acknowledges that the complainant booked a Bali tour package for four people in July 2022, with the total cost being Rs. 2,89,380. The travel was scheduled from Trivandrum to Bali via Singapore on 13.10.2022. The booking details are substantiated in Exhibit A1, which includes the itinerary and payment schedule.
The opposite party states that, according to the terms and conditions of the tour package, all passengers are required to comply with COVID-19 protocols, including possessing a W.H.O.-approved vaccine certificate, with a 14-day completion period after the final dose. These terms were clearly stated in the itinerary (copy of the tour package brochure). The complainant was responsible for adhering to these requirements.
The opposite party denies that they or their staff ever assured the complainant that an RT-PCR test would suffice for travel. The complainant’s claim that Mr. Sojymon Soviet, the tour manager, gave such an assurance is baseless and false.
The opposite party asserts that international COVID-19 protocols are set by airline companies and foreign governments, not by them. Hence, the opposite party had no authority to modify or waive these regulations. The airline issued a boarding pass to the complainant's son, but later denied him boarding based on international COVID requirements. This decision was beyond the control of the opposite party.
The opposite party emphasizes that the tour company had already incurred expenses for the complainant's entire family, including two-way flight tickets, accommodation, conveyance, tourist spot entry tickets, and food. The opposite party claims the amount spent for the complainant’s son is non-refundable due to the terms and conditions, which state that advance payments are non-refundable under certain circumstances. The cost of Rs. 72,345 per head is non-recoverable.
The opposite party contends that the complainant has not demonstrated any negligence or deficiency in service on their part. They assert that the complainant has not established a consumer relationship and that the complaint does not meet the criteria of a consumer dispute under the Consumer Protection Act.
The opposite party argues that the complainant does not fall under the definition of a "consumer" as per the Consumer Protection Act and that the company fulfilled its obligations under the contract. If the complainant believes there has been a violation of terms, he should pursue a civil suit or arbitration, as outlined in the contract. The complaint, they argue, has been filed as an experiment.
The opposite party claims that the amounts sought by the complainant, including Rs. 72,345 and Rs. 50,000 in compensation, are unreasonable and not supported by the facts of the case. Therefore, they request that the complaint be dismissed, with costs awarded to the opposite party.
In summary, the opposite party denies all claims of negligence and asserts that they complied with all terms of the contract. They argue that the complainant is not entitled to any refunds or compensation and request the dismissal of the complaint.
The evidence presented included an ex-parte proof affidavit filed by the complainant, and it was unchallenged by the opposite party. Therefore, the complainant's claims were considered credible and supported by the evidence. The opposite party's conscious failure to file their written version despite having received the Commission’s notice amounts to an admission of the allegations levelled against them. The case of the complainant stands unchallenged by the opposite party. The Hon’ble National Consumer Disputes Redressal Commission in its Order dated 09/10/2017 in RP No. 579/2017 (2017(4) C.P.R 590) also held a similar stance.
We have meticulously considered the detailed submissions of both parties, as well as thoroughly reviewed the entire record of evidence, including the argument notes.
In the case of Rakesh Khanna vs. Naveen Kumar Aggarwal & Ors, 2024 Live Law (Del) 1099, the Hon’ble Delhi High Court upheld the orders of the SCDRC and NCDRC, affirming that the Consumer Commission is empowered to issue an arrest warrant against the director of a company for the company’s failure to comply with the commission's orders. The Court ruled that the director can be held liable in his official capacity for non-compliance, thereby reinforcing the authority of the Consumer Commission to ensure enforcement of its decisions. Case Title: Rakesh Khanna vs. Naveen Kumar Aggarwal & Ors, Citation: 2024 LiveLaw (Del) 1099.
i) Maintainability of the Complaint:
The complainant approached the opposite party for a family tour package to Bali. The Consumer Protection Act, 2019, defines "consumer" under Section 2(7), which includes anyone who avails of services for consideration. Here, the complainant paid Rs. 2,89,380, as substantiated by the records marked as Exhibit A1. Therefore, a consumer relationship is established between the complainant and the opposite party. Further, the opposite party's failure to comply with legal notices issued to them and their non-participation in the proceedings amounts to an implied admission of the allegations.
Hence, the complaint is maintainable under the provisions of the Consumer Protection Act, 2019.
ii). Deficiency in Service and Negligence:
Under Section 2(11) of the Consumer Protection Act, 2019, "deficiency" means any fault or shortcoming in the quality, nature, or manner of performance which is required to be maintained. In the present case, the opposite party gave incorrect assurances to the complainant regarding COVID-19 travel requirements for Bali, specifically concerning the need for a vaccine certificate. The complainant was assured that an RT-PCR negative test would suffice, despite Indonesian authorities requiring a vaccination certificate or a doctor’s certificate, which led to the complainant’s son being denied boarding.
The opposite party’s actions resulted in emotional distress and financial loss for the complainant. The failure to verify crucial travel requirements and misleading the complainant on essential facts amounts to a deficiency in service. A deficiency in service exists where there is a failure to provide promised services, leading to adverse consequences for the consumer.
The complainant’s reliance on the opposite party's assurances, followed by his son's exclusion from the trip, caused both emotional suffering and financial loss. The absence of a response from the opposite party further solidifies their negligent conduct.
iii). Entitlement to Relief:
The opposite party failed to provide a proper service, resulting in the complainant’s loss. The complainant is, therefore, entitled to the relief.
iv). Costs of Proceedings:
Considering the opposite party’s failure to respond despite receiving notice and their failure to contest the claims made by the complainant, the complainant is also entitled to recover costs for the proceedings.
The Commission has carefully examined the submissions, evidence, and the law applicable to this case. The opposite party's failure to verify the correct travel requirements, despite being informed about the son’s vaccination status, constitutes negligence and deficiency in service. Further, the opposite party failed to respond to the legal notice, attend the hearings, or provide any documentation that could refute the complainant's claims. The Commission finds this to be a clear admission of the claims made by the complainant.
Liability of the Opposite Party:
The opposite party is liable for failing to provide the promised service and for causing financial and emotional harm to the complainant. The opposite party’s failure to ensure compliance with Indonesian travel regulations and misleading the complainant constitutes a breach of contract and negligence under the law.
The Commission deeply empathizes with the emotional turmoil experienced by the complainant and his family. It is clear that a family vacation, which should have been a time of joy and bonding, turned into a stressful and disappointing experience due to the failure of the opposite party to provide accurate information. The distress of having to leave behind a family member, particularly a child, and continue the trip without him is unimaginable. Such negligence on the part of a trusted service provider not only disrupts the family's peace but also erodes the very trust that a consumer places in these services. The Commission recognizes the pain, frustration, and helplessness felt by the complainant, who was misled despite his efforts to ensure compliance with travel regulations. This case underscores the importance of ethical responsibility and the duty of care that service providers owe to their consumers.
We determine that issue numbers (I) to (IV) are resolved in the complainants' favour due to the significant service deficiency on the part of the Opposite Party. Consequently, the complainant has endured considerable inconvenience, mental distress, hardships, and financial losses as a result of the negligence of the Opposite Party.
In view of the above facts and circumstances of the case, we are of the opinion that the Opposite Party is liable to compensate the complainant.
Hence the prayer is allowed as follows:
- The opposite party is directed to refund an amount of Rs. 72,345/- (Rupees Seventy-Two Thousand Three Hundred and Forty-Five only) for the complainant's son’s unused tour package.
- The opposite party is further directed to pay Rs. 30,000/- (Rupees Thirty Thousand only) as compensation for the mental agony and financial loss caused by the deficiency in service. This compensation covers the emotional distress, unfair trade practices, and the hardships endured by the complainant and his family due to the opposite party's negligence.
- Additionally, the opposite party shall pay Rs. 10,000/- (Rupees Ten Thousand only) towards the costs of the proceedings.
The opposite parties are jointly and severally liable for the fulfilment of the above orders, which must be executed within 45 days from the date of receiving this order. Failure to comply with the payment orders under points I, II, and III will result in interest at the rate of 9% per annum from the date of filing the complaint (24.06.2023) until the date of full payment realization.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me, and pronounced in the Open Commission.
Dated this the 28th day of October 2024
Sd/-
D.B. Binu, President
Sd/-
V. Ramachandran, Member
Sd/-
Sreevidhia T.N, Member
Forwarded/By Order,
Assistant Registrar
APPENDIX
COMPLAINANT’S EVIDENCE
- Exhibit A1:Copy of the travel itinerary and booking details.
- Exhibit A2:Copy of the train electronic reservation slip dated 13.10.22
- Exhibit A3:Copy of the train electronic reservation slip dated 18.10.22
- Exhibit A4:Copy of the lawyer notice dated 25.11.2022
OPPOSITE PARTY’S EVIDENCE
NIL
Date of Despatch
By Hand ::
By post ::
AKR/
Order in CC No. 415/2023
Date: 28/10/2024
