Per Mr.H.K.Bhaise, Hon’ble Member
1) The complainant has filed this complaint u/s 12 of the Consumer Protection Act, 1986. According to the complainants, they came across the tours organized by the opposite party and decided to make a tour of South Africa, Kenya with Victoria Falls Tour(V1) for the period from 14th September, 2011 to 29th September, 2011. The complainants paid Rs.60,000/- on 23rd February, 2011 and opposite party issued receipt to that effect. Thereafter, they paid Rs.64,465/- each on 17th August, 2011 by cheque. They also paid Rs.1,36,656/- each by cheque dated 17th August, 2011 for foreign exchange conversion for South Africa, Kenya with Victoria Falls Tour. They also paid Rs.477/- dated 9th September, 2011 by cheque. The opposite party issued Electronic Ticket, Passenger Itinerary and Receipt alongwith reservation details for tour V1160911. They were asked to submit their passports to Kesari’s Mumbai office two months prior to departure date. Accordingly, passports were submitted on 16th July, 2011. They were informed that their passports and air tickets could be given to them on the day of departure at International Airport, Mumbai. The complainant and other tourists were asked to report at International Airport, Mumbai at 12.00 midnight on 13th September, 2011. They reached International Airport at 12.00 midnight on 13th September, 2011 as informed. Till 01.30 hrs. They did not get their passports. On enquiry, Tour Manager told that all 42 passports had infact arrived at Mumbai domestic airport by Delhi-Mumbai flight and Kesari person was on his way from the domestic airport to international airport and would reach in ten minutes. Finally, the person carrying parcel of passports arrived at around 02.30 hrs. The Kesari Tour Manager distributed the passports to the respective passengers and they proceeded towards entry gate. The check in for Kenya Airways was till 02.45 hrs. and schedule departure at 03.10 hrs. The security guard did not allow them the entry as he had orders from Kenya Airways officials not to allow any passengers traveling by Kenya Airways Flight No.KQ203 as the check in counters were closed and staff at counters had left the counters. No arrangement was made by the opposite party and they were standing at airport footpath with their luggage on a rainy night for hours together. The complainants further states that they were senior citizens and were compelled to stand more than five hours with stress, anxiety and without sleep and utmost physical stress. Finally, they were asked to go on their own to Orchid Hotel at Vile Parle(East) where they were given accommodation till next day. No assurance was given as to when they would be flown to Nairobi. They had no sleep on 13th night and on next day. On 14th September, 2011, till evening they had no clue about the further tour. Suddenly, at 19.30 hrs., they were asked to rush to domestic airport to catch Indigo flight to Delhi for onward journey to Nairobi via Doha by Qatar Airways at 04.30 hrs. early morning. They had no sleep at 13th night and they had sleepless night on 14th as well. Thus, for their no fault they had to suffer because of opponent party’s negligence and irresponsible planning.
2) They reached Nairobi on 15th September, 2011 at 15.00 hrs. instead of schedule arrival of 06.30 hrs. on 14th September, 2011. They drove directly to Lake Nakuru from Airport which was a long drive after two sleepless night and no sight seeing. As per the promised itinerary, they were to stay at Hotel Ark at Aberdares National Park on 14th September, 2011, visit Thomson Falls and crossed the Equatorail line. They could not visit these very important sites purely due to mismanagement and careless handling of tour by the opposite party.
3) The complainants were totally disappointed due to skip of schedule programme. Due to casual approach of the opponent, the passports were not well in hand. They have wasted their time because of negligence and improper planning of the opponent. The complainants and other co-tourists suffered mental tension and physical inconvenience. It was the duty of the opponent to conduct the tour as per schedule. Therefore, the complainants issued letter dated 3rd October, 2011 and pointed out deficiency in service of the opponent and demanded compensation. Again, letter was issued on 14th October, 2011 however, there was no response. Therefore, the complainants has filed this complaint demanding compensation of Rs.32,000/- each with interest towards damages and loss suffered by the complainants and Rs.50,000/- each for mental agony.
4) The opposite party filed their written statement. It is submitted that after knowing the details of various tour programmes conducted by the opponent, the complainants found the tour known as V1 having Tour Code No.V1 160911/22(V1) suitable to them. The brochure was handed over to the complainants. Tour registration form was handed over to them. As per the said tour registration form, tour was to commence from 13th September, 2011. For this tour, VISA was necessary. The opposite party acts as facilitator to obtain VISA. The grant of VISA is discretion of South Africa, Kenya and Zimbabwe High Commission. All documents submitted to the opposite party for VISA were forwarded to the respective consulates. The opposite party do not take responsibility of any rejection of VISA. In case VISA is rejected due to incomplete/delayed documents or due to any other reason, the opposite party shall not be responsible. All charges for VISA are to be borne by the passengers. The opposite party has right to amend or alter any service mentioned in the itinerary and the guests shall have to continue with the tour as amended or altered. The complainants was aware about these terms and conditions.
5) On 13th September, 2011 at 00.10 hrs., the complainants were present at International Airport. The Kenya Airways was scheduled to depart at 03.10 hrs. of 14th September, 2011 for Nairobi. The Tour Manager was also present and was waiting for passports which were coming from Delhi. The opponents received stamped passports in their hand of all 41 passengers. The employee of opposite party was at domestic airport to collect the passports. The employee of the opposite parties received passports at about 02.20 A.M. and reached at International Airport at about 02.40 A.M. and handed over all passports to the guests and thereafter they rushed towards the check in counter to board the flight. All the guests reached in check in counter at about 02.45 A.M. but the staff had left the counters as the flight departure was 03.10 hrs. The Manager tried to accommodate for delayed check in but it was not allowed. The Tour Manager was unable to arrange the tour therefore arrangement was made for all the guests to accommodate Hotel Orchid, Vile Parle. All the guests were ready and willing for the same. On 14th September, 2011, the opposite parties made arrangement for flight Mumbai-Delhi-Nairobi for all the guests. They reached Nairobi early in the morning. All the guests enjoyed the tour. They could have cancelled their tour at Mumbai airport but they have opted to continue the tour. The opposite party incurred expenses for cancellation of air tickets of all 41 guests. They incurred expenses for accommodation at Hotel Orchid. The opposite party tried level best to book the first flight for Nairobi. The opposite party incurred extra expenses of Rs.13,34,376/- for this tour. The opposite party paid Rs.8,000/- per person as goodwill gesture to all the guests. The complainants have refused to accept the same. It is denied that the complainants lost their tour experience due to negligence of the opposite party. The complainant is not entitled for the relief as prayed and the complaint is liable to be dismissed.
6) After hearing both the parties and after going through the record, following points arise for our consideration.
POINTS
Sr. No. | Points | Findings |
1) | Whether there is deficiency in service ? | Yes |
2) | Whether there was delay due to negligence of the opposite party ? | Yes |
3) | Whether the complainant is entitled for the compensation as prayed ? | Partly Yes |
4) | What Order ? | As per final order |
REASONS
7) As to Point No. 1 to 3 :- There is no dispute that the complainants booked the tour for South Africa, Kenya with Victoria Falls Tour (V1) for the period from 14th September, 2011 to 29th September, 2011. It is also not disputed that the complainants paid Rs.60,000/- on 23rd February, 2011, Rs.64,465/- each on 17th August, 2011. The complainants also paid Rs.1,36,656/- for foreign exchange conversion. They also paid Rs.477/- dated 9th September, 2011 by cheque. The opposite party issued Electronic Ticket, Passenger Itinerary and Receipt alongwith reservation details for Tour V1160911. It is also not disputed that the complainants and other co-tourists were asked to report at International Airport, Mumbai at 12.00 midnight on 13th September, 2011 and accordingly the complainants and other co-tourists arrived at International Airport, Mumbai. Admittedly, by that time passports/VISA of complainants and other co-tourists were not received. The schedule departure of the flight was 03.10 hrs. and check in time was till 02.45 hrs. The person carrying passports/VISA arrived at International Airport at 02.40 hrs. and the passports/VISA were handed over to the complainants and other co-tourists and they were asked to proceed towards the entry gate. Admittedly, check in time was over and check in counters were closed. Therefore, the complainants and other co-tourists could not board the flight. All these facts are not disputed by the opposite party. The dispute is about the late arrival of passports/VISA and who is responsible for it. According to the opponent they act as facilitator to obtain VISA and they are not responsible for it. On the other hand, it is the case of the complainants and other co-tourists that they have deposited the charges with opponents for obtaining VISA and deposited the passport with the opponents for getting VISA. Therefore, it was the opponent’s responsibility to obtain VISA within time. It is not disputed by the opponent that they have received the deposit for the expenses of VISA and also collected the passports of the complainants and other co-tourists for obtaining VISA. Once they have received the charges for the expenses of VISA and collected the passports for submitting it to the concern department, the opponent can not avoid their responsibility to obtain the VISA within time. The learned advocate for the opponent has drawn our attention to the brochure containing terms and conditions. These terms and conditions are not on the schedule of tour and other receipts given to the complainants and other co-tourists. Merely pointing terms and conditions written on brochure in small print will not help the opponent to avoid their responsibility. It was necessary for the opponent to explain it to the complainants and other co-tourists. It shows that the opponent is avoiding their responsibility on flimsy ground after receiving the amount from the complainants and other co-tourists. Therefore, the submission of the opponent about the terms and conditions can not be accepted.
8) As per reply of the opponent, due to bomb blast on 7th September, 2011 at Delhi Court, there was high alert at Delhi on 13th September, 2011 and therefore they could not collect the VISA well in advance. The said bomb blast was on 7th September, 2011. The opponent received the amount and collected the passports of the complainants and other co-tourists in the month of August-2011. It is not the case that nobody was allowed to enter Delhi. Considering the known situation, it was necessary for the opponent to make arrangement to collect the VISA well in advance. VISA arrived late and therefore flight was missed. It shows the negligence of the opponent. According to the opponent, the situation was beyond their control but as there was sufficient time with the opponent, it was necessary for them to make arrangement well in time. It is submitted by the learned advocate for the opponent that right was reserved by the opponent to change or alter the tour programme but it is not their contention that they have changed/altered tour programme and informed the complainants and other co-tourists. Moreover, once they have accepted the amount from the complainants and other co-tourists for the tour programme declared by them it will not be proper to change it without informing the complainants and other co-tourists. The complainants and other co-tourists accepted the tour programme as it was convenient to them. Therefore, the opponent can not change it at the inconvenience of the complainants and other co-tourists.
9) Admittedly, tour for the first two and half days was missed. The opponent are responsible for it. They have accepted the charges for it therefore they are responsible to refund the said amount to the complainants and other co-tourists. As per reply of the opponent, they have offered Rs.8,000/- to each tourists but the complainants have refused to accept. The refund should be proportionate to the amount received by the opponent for the tour programme. The complainants have claimed compensation of Rs.32,000/- each with interest. We think amount of Rs.15,000/- to each complainant (Total Rs.30,000/-) towards refund of tour charges is reasonable.
10) As discussed above, the opponent could not arrange VISA well in advance thereby the complainants and other co-tourists missed their two and half days tour. As the tour programme was outside India, the complainants and other co-tourists can not arrange it again in that amount. They could not enjoy the tour as per their wish. Therefore, they suffered from mental agony. The opponent is responsible to pay the compensation for mental agony to the complainants and other co-tourists. The complainant have claimed compensation of Rs.50,000/- each for mental agony. We think compensation of Rs. 15,000/- to each complainant (Total Rs.30,000/-) will suffice the purpose. Besides this, the complainants are entitled for the cost of this proceeding. Hence, we proceed to pass the following order.
ORDER
1) The Complaint is partly allowed.
2) The Opponent is directed to refund amount of Rs.15,000/- each to the complainants with interest at the rate of 9% per annum from the date of filing of the complaint till realization.
3) The Opponent is directed to pay Rs.15,000/- each to the complainants as compensation towards mental agony.
4) The Opponent is also directed to pay Rs.5,000/- each to the complainants towards the cost of the proceeding.
5) The amount already paid if any, to the complainants shall be excluded from the above said amount and balance be paid to the complainants.
6) The order under Clause No.2 to 5 shall be complied with within a period of one month.
7) Copies of this order be sent to the parties free of cost.
Pronounced
Dated 30th November, 2013
