SMT. RAVI SUSHA : PRESIDENT
Complainant filed this complaint under Sec.12 of the Consumer Protection Act 1986 seeking to get a direction to the OP to get compensation of Rs.87,397.70 with interest and cost.
The averments of the complaint are that:-
The complainant is working as a civil Engineer at Thalasery. On 10/3/2017 the complainant applied for a tourist visa to UAE through Nisha Travels,Thalassery for herself and her son for visiting her brother at Dubai. The complainant received a reply from the OP on the same day stating that the visa rate and the same will be issued within 12 working days and she paid Rs.22600/- towards visa charges to OP. On 21/3/2017 she received her visa but her son’s visa was not issued . On 27/3/2017, the OP informed the complainant that the visa for her son will be approved on 27/3/2017, so she booked two flight tickets for their journey dtd.28/3/2017. But the OP failed to give visa on that date, the complainant compelled to cancel the tickets and she sustained a loss of Rs.9843.70 towards ticket charges. As per the direction of Op complainant again booked ticket for their journey on 31/3/2017 and 5/4/2017 respectively they failed to travel on that day also , because of the negligence and unfair trade practice of OP, complainant and her son could not travel to UAE within the specified time, at last they travelled to Dubai on 7/4/2017 after suffering much mental pain ,agony and loss of money. The complainant has been earning an income of Rs.50,000/- per month out of herself employment as an engineer, since she could not complete her travel in time, she sustained a loss of Rs.30,000/-. Hence filed this complaint for getting compensation from OP.
After receiving notice from this commission OP entered appearance through counsel and filed version. OP raised contentions that complaint is bad for non-joinder and mis joinder of parties. Nisha Travels,Thalassery and Ministry of Interior UAE are necessary parties in this case and the complainant is not a consumer of OP as there is no availing of any service by the complainant for consideration from the OP. Op further submitted that this forum does not have territorial jurisdiction to try and entertain the instant complaint as this OP does not have any branch office or carry on business within the territorial jurisdiction of this commission. No cause of action whether wholly or partly arises within the jurisdiction of the commission. Hence dismissed in limine. Op further submits that on 10/3/2017 at 5.41 a.m Nisha Travels, Thalassery had enquired them about the visa application rates and details for complainant and her son to apply for UAE visiting visa. This OP had given the required details along with terms and condition to Nisha Travels,Thalassery through mail and informed that the said amount is collected towards embassy fees and service charges and it would not be refunded under any circumstances. Thereafter the above said travels accepted the rates and terms and conditions and a direction was given to proceed with the application. On the next working day itself the OP applied for the visa and on 22/3/2017, the Ministry of Interior,UAE approved the application of the complainant and the same was duly intimated to Nisha Travels,Thalassery. On 27/3/2017, the OP had issued an e-mail to Nisha Travels stating that there was a delay on the part of the authority in approving the visa of the complainant’s son. On 30/3/2017, Nisha Travels had issued a communication to the OP to cancel the application and to return the amount along with cancellation certificate and the valid reason is required for cancellation of the visa application and the same was intimated to Nisha Travels through mail. The application status of the complainant’s son was still under processing as on 31/3/2017, and thereafter the application was rejected due to security reason. To accept or reject any such application is a sole discretion of Ministry of UAE. On 3/4/2017 Nisha Travels again applying for a visa for complainant’s son and fresh application was made by OP. On 5/4/2017 the visa application was approved by the Ministry of UAE and the same was informed to Nisha Travels on the same day. Without remitting the application fee, Nisha Travels in collusion with the complainant is now trying to escape payment and cause undue hardship and loss to the OP. There are no documents furnished by the complainant to support her contentions of having lost significant amounts on flight tickets on account of the delay in approval of her son’s visa. There was no negligence, deficiency in service or unfair trade practice on the part of OP. Hence prayed for the dismissal of complaint.
In order to prove the case, complainant filed her chief affidavit and documents. She was examined as PW1 and Exts.A1 to A6 marked. The manager of Nisha Travel agency Mr.Pradeep.P.K was examined as a witness on the side of complainant. Both witness were cross examined for the OP and Exts.B1&B2 series were marked through PW2. The manager of OP Mr.Raghunath filed his chief affidavit on behalf of OP and was examined as DW1. Exts.B3 to B6 were marked from the side of OP. DW1 was cross examined for the complainant.
After that the learned counsel of complainant filed written argument note and the learned counsel of OP placed oral argument before us.
The first plea raised by the learned counsel of OP that this complaint is bad for non-joinder and mis joinder of parties. Nisha travels,Thalassery and Ministry of Interior UAE are necessary parties in this case and the complainant is not a consumer of OP as there is no availing of any service by the complainant for consideration from the OP.
With regard to 1st plea of OP, the argument of learned counsel of OP is that as the travel agent who has made the booking was not joined as a necessary party. It is an admitted fact that Nisha Travel,Thalassery is working as an agent for booking air ticket and arranged visa from other agency. In the present case OP admitted that as per the information of Nisha Travel agency they applied for visa to the complainant and to her son. As an agent of OP it was his duty to collect the charges of visa and passing its credit to the OP. Ext.B2 series clearly shows that visa rate was credited to the account of Travel Partner Holidays(OP). Thus the arrangement between OP and Nisha Travels Agency was to collect the visa rate by the agent and credited to the OP. Therefore the question of non joinder of the travel agent as a party to the proceedings and mis joinder of OP as an unnecessary party, will therefore not arise . Ministry of Interior U.A.E is also not a necessary party in this proceedings.
The next plea raised by the learned counsel of OP is that this commission has not territorial jurisdiction. This argument is not acceptable because complainant booked the visa through Nisha Travel Agency Thalassery as an agent of OP and further all the correspondence to the complainant was made by OP through the said Travel agency at Thalassery, which is within the territorial jurisdiction of this commission. Thus part of cause of action has arisen within the jurisdiction of this commission. So there is no question of lack of territorial jurisdiction.
The next question to be decided is whether there is any deficiency in service on the part of OP in approval of visa to complainant’s son namely Switten Sreejith aged 14 years.
From Ext.B2 series, it is clear that on 10/3/2017 complainant applied to OP for a tourist visa to UAE through Nisha Travel Agency for herself and her son. Ext.A5 shows that for visa charge for complainant and her son she had remitted Rs.22600/- in favour of Travel Partner(OP) and transaction status is success’. From the material on record (Ext.B2 series) it is also clear that the visa will be provided within 12 working days. DW1 the manager of OP also deposed that in page No.2 km[mcW FÃm hnkIfpw icnbm¡n \ÂIp¶ Imemh[n 12 ZnhkamWv ? (A) icnbmWv . On the assurance it is seen that on 10/3/2017(Ext.A6) complainant has booked two flight tickets for journey dtd.28/3/2017 by paying Rs.24395, through Nisha Travels. It is seen that the complainant’s visa became approved and received on 21/3/2017. Ext.A8(Ext.B2 series) shows that on 27/3/2017, OP sent a message to Nisha Travels stating that visa for son will be approved and requested to wait till 27/3/2017 evening . But admitted fact that visa for the complainants son was failed on 27/3/20179Ext.B2 series clears). Hence complainant was compelled to cancel the tickets booked for 28/3/2017. Ext.A10 shows the request sent by complainant through travel agency to OP, on 30/3/2017 to inform the present position of her son’s visa and Ext.A11 reveals that OP sent reply at 2.02 p.m that application in process. At 2.08 on the same day complainant informed through agency to cancel and return back the amount today itself(Ext.A12). As reply OP informed to send valid reason for cancellation(Ext.A13). It is seen that complainant on 28/3/2017 booked tickets again on 28/3/2017 for travels by paying Rs.36239/-(additional 9843.00) Ext.(A14). But the admitted fact that visa for complainant’s son was not ready on 31/3/2017. So complainant had to cancel the second tickets also. The explanation for rejection of visa application of Swittin Sreejith by OP was on the part of Ministry of Interior UAE in approving the visa of the complainant’s son. DW1 also deposed that the rejection was due to security reason. On the other hand complainants version is that it is due to the failure on the part of OP to fill the application of Swittin‘s properly regarding the accompanying person. On perusal of material on record, it is clear that in the application of swittin dated 12/3/2017, group membership column remains vacant. With regard to this disputed point, no evidence has been brought before us by the OP to show that the visa application for complainant’s son was rejected by Ministry of UAE due to security reason. Except for a bare contention and affidavit of DW1 that the non approval was due to the security reason raised by Ministry of UAE, no material or proof was placed before this commission regarding delay on the part of the Authority. No communication from the United Airlines has been produced to substantiate that due to security reason or due to other reasons the visa application for the complainant’s son swittin was rejected, from which we come to a conclusion that infact, the rejection was due to the carelessness on the part of OP in filling the visa application for the son of complainant. In the absence of proper and adequate proof of reason for rejection of visa of swittin, there is deficiency in service on the part of OP in not approval of his visa in proper time along with complainant’s visa.
From the material on record, it is not seen that complainant through Travel Agency approached OP for applying for a new visa to swittin. So it is also clear that in order to hide their fault, fresh application was made by the OP without the knowledge of the complainant. From the records it is also evidenced that when the complainant requested to cancel the visa and return the visa charge given to OP, without returning the charges they simply sent reply to seek the valid reason for rejection.
From the evidence, it could be seen that because of the fault on the part of the OP, the complainant and her son could not travel to UAE on the arranged date. Instead of 28/3/2017, they could travel only on 7/4/2017. Op raised another contention that the application fee, processing fee, service charges for the subsequent visa application were paid by OP from his hand which was not given by travel agency or the complainant. We cannot accept the said contention of OP, because it is the responsibility of OP and not upon the travel agency to pay additional charges as the rejection of ticket was not due to the latches on the part of complainant or by the travel agency. There is clear evidence that complainant has sustained loss due to repeated booking of tickets.
From the aforesaid facts and circumstances and also from the material on record, we are of the considered opinion that there is deficiency in service and unfair trade practice on the part of OP. Hence complainant is entitled to get compensation from the OP for the mental agony and loss of monetary benefits. Here the complainant failed to substantiate her monthly income.
In the result, complaint is allowed in part. Opposite party is directed to pay Rs.50,000/- towards compensation to the complainant and also Rs.10,000/- towards litigation cost. Opposite party shall comply the order within one month from the date of receipt of this order. Failing which the awarded amount caries interest @12% per annum from the date of order till realization. Complainant is also at liberty to file execution application against opposite party for realization of the ordered amount from opposite party, as per the provisions envisaged in Consumer Protection Act 2019.
Exts;
A1&A2-Computer extract of visa dtd.10/3/2017(subject to proof all documents)
A3- reply dtd.30/1/21
A4-Booking acknowledgment
A5-receipt dtd.15/3/2017
A6-Air ticket dtd.10/3/2017(2 in Nos.)
A7-visa dtd.21/3/2017
A8-delay intimation of visa dtd.27/3/17
A9-cancell the ticket and remit additional amount
A10-Request intimation for visa dtd.30/3/17
A11-Reply send by OP
A12&A13 –Intimation
A14-ticket booking receipt
A15-Visa dtd.5/4/17
A16- Additional charge receipt
B1-lawyer notice
B2 series-copy of mail communications
B3-Visa application status of complainant’s son
B4-Registered visa application
B5-Visa application status plus copy of visa of complainant’s son
B6-Authrization letter
PW1-Smitha.M.P- complainant
PW2-Pradeep.P.K- witness of PW1
DW1- Raghunath .K.P- OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew. Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
