BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 382/2010 Filed on 01.12.2010

Dated : 15.11.2012

Complainant :

Sankar Gopalakrishna Pandalai, S/o K.R.V. Pandalai, Editor & Journalist, Research Sign Post, residing at T.C 37/661, Vazhappally, Fort P.O, Thiruvananthapuram.

(By adv. G.T. Pradeep)

Opposite parties :

1. M/s Skyways Holidays Pvt. Ltd., Hotel Mas Compound, Over Bridge, Thiruvananthapuram represented by its Managing Director.

    

2. Shaji Mathew, Managing Director, M/s Skyways Holidays Pvt. Ltd., Hotel Mas Compound, Over Bridge, Thiruvananthapuram.

(By adv. Michael Kutty Mathew)

This O.P having been heard on 27.10.2012, the Forum on 15.11.2012 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to filing of the complaint are that complainant and his wife have planned a holiday at Hongkong during January 2010, that complainant approached M/s Skyways Holidays Pvt. Ltd., the opposite parties, to make all arrangements for the journey, that opposite parties arranged package @ Rs. 39,518/- each which includes 3 nights stay at Royal View Hotel accommodation, air fare, breakfast pickup, city tour etc. for the complainant and his wife from 14.01.2010, that opposite parties arranged tickets in air Air Asia flight, that as the flight had routed through Malaysia, complainant enquired to the employee of the opposite parties namely Mrs. Suja whether a Malaysian visa required for the journey, that Mrs. Suja informed the complainant that no prior visa is required to visit Malaysia and in the case of complainant Malaysia is only a transit point and visa will be issued on arrival at Malaysia and visa for Hongkong will be provided on arrival at Hongkong, that on the basis of the said assurance complainant and his wife proceeded to Kochi on 14.01.2010 to board the flight. On reaching the airport complainant reported at the Air Asia counter at the airport to board the flight. Then on verification it was revealed that opposite parties had not arranged visas for the travel, that it is the duty of the opposite parties being the travel agent to arrange the visas especially this journey has been arranged as a package by the opposite party, that immediately complainant contacted the opposite parties regarding the visa arrangement assured by them, but there was little response on the side of the opposite parties and they had not even cared to render any assistance either to proceed with the journey or to make any alternate arrangements, that complainant had to abort the journey due to the callous and unsavoury attitude of the opposite parties, that complainant had to undergo severe mental pain and agony and stress, that on seeing the predicament and sad plight of the complainant and his wife, the Air Asia authorities arranged a trip to Colombo through another travel agent. Complainant and his wife were forced to visit Colombo to avoid humiliation and embarassment for which complainant had to spend Rs. 60,000/-, that complainant sent legal notice on 29.06.2010 demanding Rs. 1,00,000/- including the expenses incurred for the trip to Sri Lanka and compensation for undue hardship suffered by the complainant on account of the deficiency in service and illegal action of the opposite parties. Hence this complaint.

Opposite parties filed version contending interalia that complainant approached the opposite parties with a request to book two air tickets in Air Asia flight from Kochi to Hongkong and back to Thiruvananthapuram, that complainant wanted the opposite party to book hotel accommodation in Hongkong for their stay, that the request was not in response to any package offered by the opposite party. The request of the complainant was promptly carried out by the opposite parties and tickets were obtained on using the credit card of the opposite party. It was with a view to help the complainant that the tickets were booked utilizing the credit card of the opposite parties, that complainant had then issued two cheques for Rs. 39,518/- each towards the cost of tickets and other arrangements made by the opposite party, that the question on the visa was asked by the office of the opposite party since the Air Asia Airline was not a member of IATA. The complainant replied that the visa requirements would be taken care of by himself and that opposite party need only to arrange air tickets in Air Asia Airlines since it was cheap. The visa requirements of the complainant was not looked into by the opposite party and the allegation that the opposite party misinformed or misguided the complainant is not true. There was no deficiency in service on the part of the opposite party. It is true that complainant had sent to the opposite party a legal notice which was promptly replied by the opposite party. The business deal between the complainant and opposite party was only for booking air tickets and hotel accommodation. Neither there was any package offered by the opposite party nor any request for a package made by the complainant. Hence opposite party prayed for dismissal of the complaint.

The points that arise for consideration are :-

1. Whether there is deficiency in service on the part of the opposite parties?

2. Whether complainant is entitled to any reliefs as prayed in the complaint?

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P11. In rebuttal opposite party has filed proof affidavit and has marked Ext. D1.

Points (i) & (ii):- The very case of the complainant is that opposite parties arranged package @ Rs. 39,518/- each, which included 3 nights stay at Royal View Hotel accommodation, air fare, breakfast pick up, city tour etc. for the complainant and his wife from 14.01.2010. The stand of the opposite party is that complainant had approached the opposite party for air tickets in Air Asia flight and hotel accommodation in Hongkong. There is no dispute on the point that opposite parties arranged tickets in Air Asia flight. It has been the case of the complainant that when complainant enquired to the employee of the opposite parties whether a Malaysian visa required for the journey, the employee Mrs. Suja informed him that there is no prior visa required to visit Malaysia since Malaysia is only a transit point. It has also been the case of the complainant that when complainant proceeded to Kohi on 14.01.2010 to board the flight the airport authorities revealed that opposite party had not arranged visas for the travel. According to opposite parties complainant informed them that the visa requirements would be taken care of by himself and what the opposite party need to do is to arrange air tickets. The very case of the complainant is that it is the duty of the opposite parties to arrange visas as the journey has been arranged as a package by the opposite party. According to complainant the visa is a pre-requisite for travel. But opposite party had misinformed or misguided the complainant. In support of the complaint complainant has led evidence by way of proof affidavit and Exts. P1 to P11. Ext. P1 is the copy of the package issued by opposite party. Ext. P2 is the copy of e-voucher. On perusal of Ext. P2 in the service column it is written as package, under terms and conditions responsibility of the opposite party is mentioned. It is read as under: “It is understood that we act as agent only for all services covered hereby. Further we shall not be responsible for any loss, injury or damage resulting from acts of God, dangers, fire, breakdown of machinery, equipment or vehicles, acts of government authority, wars, civil disturbances, riots, thefts, pilferage, epidemics, quarantines or any delays or changes including any extra expenses which the passenger may incur as a result of any of the foregoing causes”. Ext. P3 and P4 are copies of the passports of the complainant and his wife. Exts. P5 and P6 are the copies of travel itinerary issued by Air Asia.com. Ext. P7 is the e-ticket receipt/itinerary issued by Srilankan Airlines. Ext. P8 is the postal receipt. Ext. P9 is the reply notice dated 19.07.2010 issued by opposite party. Ext. P10 is the acknowledgement card. Ext. P11 is the copy of the advocate notice issued by the complainant. Complainant has been cross examined by the opposite party. During cross examination complainant has deposed that opposite parties had instituted two criminal cases ST 2956/10 and 2957/10 under Sec. 138 of the Negotiable Instruments Act in connection with bouncing of cheques due to stop payment against complainant. During cross examination complainant has admitted that he has issued two cheques to the opposite parties for Rs. 39,518/- each. Further complainant has deposed that the two cheques were not bounced rather he had issued stop payment to the bank. Complainant denied the suggestion put forth by the opposite party that opposite party had not arranged a package tour. Complainant has deposed that opposite parties had arranged a package tour which includes every thing not only flight but also accommodation, visa travel taxi, breakfast in the hotel, sight seeing etc. Opposite parties' evidence consisted of oral testimony of the 2^nd opposite party and Ext. D1. 2^nd opposite party has been cross examined by the complainant. During cross examination opposite party has admitted that package includes accommodation, breakfast, lunch, visit of tour places, entry free and visa. Opposite party has deposed further that some packages include accommodation, air fare, breakfast and city tours only. According to opposite party package denotes group journey. Opposite party has admitted that in Ext. P2 opposite party has mentioned in the service column as package. Opposite party has deposed further that the booking was done by officer Mrs. Suja and opposite party had no direct involvement in it. It has been deposed by the opposite party that the booking was done by the opposite party by using the personal credit card of the 2^nd opposite party. 2^nd opposite party denied the suggestion put by the complainant that online booking could not be done without visa. Admittedly complainant could not visit Hongkong as per Exts. P1 and P2. It is pertinent to point out that Ext. P2 has been issued by opposite party as a package tour. Further 2^nd opposite party has deposed that package includes visa coverage also, thereby it has to be concluded that opposite party is duty bound for all services covered by package as stipulated in Ext. P2. It is the responsibility of the opposite party to act as an agent for all services covered by package. It should be noted that though the ticket was issued by the 2^nd opposite party using his credit card, subsequently complainant had issued two cheques for Rs. 39,518/- each towards package charges. Knowing the fact that opposite party has not arranged visas for the said journey complainant had issued stop payment to the bank, thereby opposite parties could not encash the cheque amount. It is further to be pointed out that opposite party has instituted two criminal cases against the complainant under Sec. 138 of the Negotiable Instruments Act. But the fact remains that complainant could not travel as per the package as offered by the opposite party. By virtue of Ext. P2, we are of the considered opinion that after providing package assurance opposite party moved away from the said assurance which has resulted in the cancellation of trip by the complainant to Hongkong. The action of the opposite party in not providing package service to the complainant as assured by the opposite party amounts to deficiency in service on the part of the opposite party. We can imagine how much of problems, inconveniences, stress and strain undergone by the complainant due to the cancellation of the expected trip. The stand of the opposite party that on issuing stop payment to bank the right of the complainant to approach this Forum is extinguished, as complainant had never availed any service from the opposite party has no basis or relevance at all since complainant has offered payment by way of cheque towards package expenses including visas. Complainant has promised to pay the said amount, but due to the action of the opposite party they were compelled to issue stop payment thereby opposite party could not encash the cheque. This does not in any way affect the right of the complainant as a consumer to approach this Forum. In view of the above and evidence available on records, we find there is deficiency in service from the side of the opposite party. Opposite party is liable to compensate the complainant which we fix at Rs. 10,000/-.

In the result, complaint is partly allowed. Opposite parties shall jointly and severally pay the complainant a sum of Rs. 10,000/- towards compensation within two months from the date of receipt of this order. Both parties shall bear and suffer their respective costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of November 2012.

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

BEENAKUMARI. A : MEMBER

Sd/-

S.K. SREELA : MEMBER

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C.C. No. 382/2010

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Sankar Gopalakrishna Pandalai

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of package issued by opposite party.

P2 - Copy of e-voucher

P3 - Copy of passport of the complainant

P4 - Copy of passport of complainant's wife.

P5 - Copies of travel itinerary issued by Air Asia.com

P6 - Copies of travel itinerary issued by Air Asia.com

P7 - E-ticket receipt/itinerary issued by Sri Lankan Airlines.

P8 - Postal receipt

P9 - Advocate notice dated 19.07.2010 issued by opposite party.

P10 - Acknowledgement card.

P11 - Advocate notice dated 30.06.2010.

III OPPOSITE PARTY'S WITNESS :

DW1 - Shaji. N. Mathew

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Extract of Malayala Manorama daily dated 09.06.2010.

Sd/-

PRESIDENT

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