BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 29/10/2010

Date of Order : 29/05/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 576/2010

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the case of the complainant is as follows :

On 13-12-2009, the complainant and his wife booked a tour programme by name ’European Bargain’ with the opposite party. They chose 13 nights/14 days tour starting from 07-04-2010 and paid Rs. 25,000/- each in advance. The tour cost as per the brochure was Rs. 71,250/- plus 1,355/- Euros per person. The complainant booked for Ex-Chennai rates while Ex-Mumbai was Rs. 64,250 + 1,355 Euros per person. The complainant had to bear an extra deviation charge (Ex-London) of Rs. 5,000/- per person. The complainant was offered a discount of Rs. 20,000/- per person as they did not avail free Dubai stay. The visa had to be reprocessed, since the opposite party has not shown the entire amount is received for which an additional expense of Rs. 11,600/- was charged on the complainant. By the time, the opposite party offered another tour package by name European Extravaganza tour starting from 08-04-2010. Though the opposite party offered more concessions and benefits, never confirmed the same and therefore the visa processing was made for the bargain offer and not for extravaganza. Lured by the assurances of the opposite party, the complainant gave a verbal consent for the European Extravaganza tour scheduled on 08-04-2010. In March 2010, the opposite party intimated the complainant that the same is cancelled and offered to give confirmation in the European Vaganza tour of 12-04-2010. At that juncture, the complainant requested to put them back in Bargain tour of 07-04-2010, but the opposite party was not prepared for the same. Therefore the complainant had no other go, but to accept the European Vaganza tour of 12-04-2010, the complainant and his wife had to suffer lot of inconveniences and mental agony due to the deficiency in service on the part of the opposite party. According to the complainant, the opposite party is bound to refund the following amounts :-

1. The additional amount of Rs. 500 + Rs. 77,952/- (1218 Euros) collected from the complainant.

2. The difference in Ex-Chennai and Ex-Mumbai rates changed for and paid for ie. Rs. 7,000/- x 2 = 14,000/-.

3. The additional discount offered to bridge the gap between the Bargain and Extravaganza, but paid by the complainant at Rs. 5,000/- each. Total Rs. 10,000/-.

4. The amount of Rs. 11,600/- spent for reapplying the visa.

In addition to the above, the complainant is entitled for compensation of Euro 80 Equivalent to Rs. 5,120/- for the extra day spent in London due to the negligence on the part of the opposite party in booking in the ticket Ex-London well in advance together with compensation of Rs. 2 lakhs and Rs. 10,000/- towards costs of the proceedings. This complaint hence.

2. The version of the opposite party is as follows :

Any customer who accepts or selects a tour plan is bound by the terms and conditions laid down in the brochure. The complainant had specifically opted for Ex-Chennai rates so as to minimize his travel expenses. The only authority to grant/reject visa is entirely with the respective consulate. The complainant had transferred his tour plan from “European Bargain” to the premium tour of “European Extravaganza” on his own. The complainant had after going through both the brochures had consented to opt for the Extravaganza tour. Additional discounts of Rs. 25,000/- per person were not offered for taking up the plan. Tickets were booked at Ex-Chennai rates for Cochin, which is a boon to the complainant, which he has suppressed invariably. The tour scheduled to commence on 08-04-2010 was cancelled due to technical reasons. It was made clear to the complainant that TCIL reserve the right to change any itinerary information before or after booking the tour due to any event beyond their control. The opposite party reserves the right to claim any additional expenses incurred due to delay or changes in schedules of train, aeroplane, bus ship or other services if at all. The complainant was constantly shifting his mind from one point to another to select a better one. At the last minute, when all the bookings were done, the complainant waited to shift tour plans and again wanted to choose. “European Bargain”

which was not possible. The complainant cannot shift the burden of his fault to the opposit party. The opposite party cannot confirm to deviation of the tour according to the wish of a customer. It is always done thereafter. Though 29-04-2010 was the requested date of the complainant for return journey due to non-availability of seat, they had to be changed to 30-04-2010. There is no deficiency in service on the part of the opposite party.

3. The complainant was examined as PW1 and Exts. A1 to A13 were marked on his side. The witness for the opposite party was examined as DW1 and Exts. B1 to B9 were marked on their side. Heard the learned counsel for the parties.

4. The points that arose for consideration are :-

1. Whether the opposite party is liable to refund the additional amount of Rs. 500/- + 77,952/- (1218 Euros) collected from the complainant?

2. Whether the opposite party is liable to refund the additional discount amount offered to bridge the gap between the Bargain and Extravaganza, but paid for by the complainant at Rs. 5,000/- per person?

3. Whether the opposite party is liable to refund Rs. 11,600/- spent for reapplying for visa?

4. Whether the opposite party is liable to compensate Euro 80 (Rs. 5,120/-for the extra day spent in London due to the negligence on the part of the opposite party?

5. Whether the opposite party is liable to pay compensation of Rs. 2 lakhs and Rs. 10,000/- towards costs of the proceedings?

5. Point No. i. :- Ext. A5 is the booking form signed by the complainant on 13-12-2009, which goes to show that at the threshold the complainant opted European Bargain tour. Admittedly at the instance of the employees of the opposite party, the complainant decided to change the tour package from European Bargain to European Extravaganza. Admittedly, Mr. Sunny Roy an employee of the opposite party on his own in connivance corrected the tour package as European Extravaganza instead of European Bargain in Ext. A5. It is pertinent to note that apart from the change in the name of the tour and tour code none of the other entries in Ext. A5 has been changed by the opposite party. No explanation is forthcoming on the part of the opposite party on that count. It is lamentable that in spite of evidence, why adequate measures have not been resorted to in acquiescence.

6. Ext. B9 is the original of Ext. A5 by relying on Ext. B9, the opposite party contends that the parties are bound by the terms and conditions on the reverse side. However, we are not to agree with the above contentions of the opposite party for the evident reason that the terms and conditions are printed in too fine a print which cannot be read with naked eyes. According to the Hon’ble Supreme Court, if the terms and conditions are in fine prints the terms and conditions are not binding on the parties (Modern Industries Ltd. Vs. Oriental Insurance Co. Ltd. 2000 CTJ 169 (SC) (CP) ). In the above circumstances, we are only to hold that the opposite party is contractually and legally liable to abide by the nomenclatures in Ext. A5. As per Ext. A5, the tour cost is Rs. 76,500/- per person, however the opposite party levied a sum of Rs. 78,500/- per person from the complainant. The opposite party is liable to refund Rs. 2,000/- per person the difference in the tour cost (ie. Rs. 78,500/- - Rs. 76,500/- = Rs. 2,000/-) to the complainant.

7. Point No. ii. :- The opposite party changed the tour package from European Bargain to European Extravaganza. At the time of change of the package the opposite party did not demand the deviation charge from the complainant. However, admittedly the opposite party demanded and received a sum of Rs. 5,000/- per person to which the complainant had to agree. A practice which flays law blatantly, the considered claim deserves due consideration the claim not being unconsidered.

8. Point No. iii. :- During evidence, DW1 the witness for the opposite party stated that there was every possibility of rejection of visa application if there were no sufficient fund in the bank account of the complainant. Further DW1 stated that he had intimated the same to the complainant, no evidence in furtherance. Moreover, Ext. A13 cash memo would show that there was sufficient funds in the possession of the complainant. The opposite party with the knowledge that the visa application would be rejected if processed without having enough funds to credit would be rejected. The above conduct of the opposite party amounts not only to deficiency in service, but also to unfair trade practice on their part. However, the opposite party had collected an amount of Rs. 11,600/- from the complainant for reapplying the visa which was unnecessary. The opposite party is liable in law and time to refund the amount to the complainant.

9. Point No. iv. :- In Ext. A2 e-mail dated 31-03-2010, Mr. Roy Sunny the employee and the person who was in charge of the opposite party stated as follows. “We have already given reservation as Ex-Cochin and return on 29^th April returning from London to Cochin.” But the complainant and his wife could travel only on 30^th and he had to stay one more day in London and to incur a sum of Rs. 5,120/-. Had the opposite party taken better diligence in their promise the inconvenience of the complainant could have been avoided which was unnecessary. The opposite party legally indisputably is liable to pay the amount to the complainant. Has no complaint not to pay the claim of the complainant.

10. Point No. v. :- It is to be noted that the case of the complainant is basically based on the deficiency in service on the part of the opposite party prior to the tour programme. However, the events that followed have shattered their expectations. As pointed out by the complainant and born out from the records, the opposite party did communicate the details of the tour programme at the fag end of the commencement of the same alone, which proves deficiency in service on the part of the opposite party. In toto and uncontroverted, the complainant and his family has been put to inconvenience and mental agony due to the non-performance of the opposite party as per their promises. This necessarily calls for compensation especially for the reasons stated afore. Be that as it may, mental agony and inconveniences cannot be quantified. We put our faith in the complainant who is no less than a Lieutenant Colonel not to mention his doctorate in taking a positive view of the situation at hand. Of course, they have to be acknowledged. In this case, we do so. But then the claim of the complainant cannot be agreed to in full. However, to abate the agony of the complainant, we fix the compensation at Rs. 30,000/- which shall include the costs of the proceedings as well.

11. In the result, we partly allow the complaint and direct as follows :

1. The opposite party shall refund Rs. 4,000/- (Rs. 2,000 x 2) to the complainant being the difference in the cost of the tour.

2. The opposite party shall refund Rs. 10,000/- (Rs. 5,000 x 2) to the complainant the deviation charges collected from the complainant.

3. The opposite party shall refund Rs. 11,600/- to the complainant the additional amount received from the complainant towards the processing of visa.

4. The opposite party shall pay Rs. 5,120/- to the complainant the expenses incurred by him in London.

5. The opposite party shall also pay a sum of Rs. 30,000/- to the complainant towards compensation and costs of the proceedings.

The 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 open Forum on this the 29^th day of May 2012.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant’s Exhibits :-

Opposite party’s Exhibits :-

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