Complaint Filed On: 31.08.2009
Disposed On:21.10.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
21st Day of OCTOBER 2011
PRESENT:- SRI. B.S.REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI.A.MUNIYAPPA MEMBER
COMPLAINANTS | 1. S. Nagaraja, S/o Late Sri. R.Shivarudraiah, Aged about 62 years. 2. Smt. C. Annapurna, W/o Sri. S. Nagaraja, Aged about 49 years. 3. C. Rudra Prakash, S/o Late Sri.P.Chandrashekaraiah, Aged about 54 years. All the three are residing at: No.16/1, I Floor, 7th Cross, Kumara Park West, Sheshadripuram, Bangalore – 560 020. Advocate: Sri B. Shivamallappa V/s. |
OPPOSITE PARTY | M/s Cox and Kings (India) Ltd., No.22, I Floor, BMH Complex, K.H. Road, Bangalore – 560 027. Rep: by its Senior General Manager, Sri. Suresh Pendakur. Advocate: Sri C.M. Poonacha |
O R D E R
SRI. B.S. REDDY, PRESIDENT
This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986, by the complainant seeking direction against Opposite Party (herein after called as O.P.) to pay compensation of Rs.3,19,200/- towards damages, mental agony and humiliation and harassment caused to the complainants on the allegations of deficiency in service on the part of the OP.
2. In the complaint it is stated that the complainant No.1 being the husband of complainant No.2 and complainant No.3 is brother of complainant No.2 approached OP on 14.02.2009 and enquired about the group tour for European Splendor Tour with 30% cash back programme. OP assured the complainants with the offer. The complainants paid advance of Rs.9,000/- another sum of Rs.1,12,500/- was paid on 23.02.2009. After getting the invoice, the complainants paid Rs.2,37,043/- and also paid another amount of Rs.1,18,521/-. Totally the complainants paid travel charges of Rs.4,77,064/- to the OP. OP further demanded and collected an amount of Rs.25,000/- from each of the complainants totally Rs.75,000/-. In the e-mail OP threatened the complainants saying that Schengan visa is valid only till 22.07.2009, though the return journey of the complainants was on 27.07.2009. After e-mail conversation, OP confirmed the journey on 09.07.2009. On 06.07.2009 OP gave the second invoice / virtual tour dated 06.07.2009 regarding European Splendor tour mentioning the departure date 09.07.2009. OP further demanded another sum of Rs.1,800/- saying that it is towards tour cost, though the complainants are not supposed to pay, since they were ready to go with the tour, simply paid that amount during the tour OP illegally collected 1,320 Euros, in Indian currency it amounts to Rs.92,400/-. The so called Europe Splendor Tour is in the month of May and June which was a very good season for joyful tour, that is why the complainants have chosen and booked for the same in the month of February 14th 2009 itself, but one way or the other, OP postponed the tour, in conducting the tour in the month of May and June, though submitted their passports and paid the tour cost in the month of March itself to get the visa and other formalities like confirmation of ticket etc., but some how, the reasons best known to them, OP collected extra money and postponed the programme to July – 2009. Thus OP has not rendered the sufficient service, there is a deficiency of service on the part of the OP. OP illegally collected Rs.75,000/-, Rs.1,800/- and Rs.92,400/- as stated above totally amounting to Rs.1,69,200/-. OP is liable to repay the same to the complainants. For the deficiency of service, OP is liable to pay Rs.50,000/- to each of the complainants as compensation amounting to Rs.1,50,000/-. Even before issuing, confirmation letter, OP threatened the complainants in saying that your visa will expire on 22.07.2009 though the complainants have not completed the tour since their returning date is 27.07.2009. Thus the complainants claim in all Rs.3,19,200/-. Hence the complaint is seeking necessary reliefs stated above.
3. On appearance, OP filed the version contending that the complainants have not approached this Forum with clean hands OP not legal entity being a branch office, this Forum has no jurisdiction to entertain the complaint, as the Forum chosen by the parties is District Forum Mumbai. There is no deficiency of service on the part of the OP. The complainants approached OP on 14.02.2009 to book the tour of “Europe experience” for departure scheduled on 07.05.2009 and paid an advance amount of Rs.9,000/-. On 23.02.2009 part payment of sum of Rs.1,12,500/- towards tour cost amount subsequently, the complainants upgraded the tour from European experience to European Splendors. Whenever there is an up gradation of the tour, OP charges sum of Rs.5,000/- per person. As a gesture of goodwill OP did not charge any amount for upgrading the tour. The final payment was made by the complainants on 06.03.2009 of a sum of Rs.3,30,863=50. On the said date the complainants also made the payment of Euro 390 towards optional tour of Glacier 3000 and availed free trip to Mount Cox and Kings Gala with disco dancing and Mount Chamonix. At the time of booking it was made clear to the complainants that procurement of visa takes approximately 20 to 25 working days. Passports of complainants 1 and 2 were ready and handed over to the visa department immediately for further process. But OP received the documents complainant No.3 on 18th April 2009. Though the documents were received late for the third complainant, the visa could not be processed in time due to unavoidable circumstances. The OP also expressed its inability to confirm the journey on 07.05.2009 due to shortage of time to process the visa to the complainants as documents of complainant No.3 was submitted only on 18th April. The complainants then sought for postponement of the tour to the next available date. Hence OP was constrained to cancel the departure of the complainants scheduled on 7th May 2009 and re-schedule the tour to a subsequent as was sought by the complainants. As per the cancellation policy OP applied cancellation charges of Rs.40,000/- per person. The complainants requested OP to allow them travel on 4th June 2009 and not to apply the cancellation charges. OP as a goodwill gesture reduced the cancellation charges a sum of Rs.40,000/- per person to a sum of Rs.25,000/- per person and sum of Rs.75,000/- was collected towards the cancellation charges for the 7th May 2009 departure. On 6th May 2009 UK visa of complainant No.3 was obtained. Thereafter Op offered the complainants the following dates of travel in confirmation, i.e., 28.05.2009, 04.06.2009, 18.06.2009 and 09.07.2009. The complainants confirmed the last available date 09.07.2009 to travel as their Schengen visa validity was expiring on 22.07.2009, after the receipt of cancellation charges, complainants confirmed they are ready to travel on 09.07.2009. The total tour cost of Rs.3,30,863=50 neither includes the payment towards optional on 06.03.2009 nor the other optional taken on tour by the complainants. At the time of booking, the complainants were given the price grid interalia containing what the tour cost includes and what the tour cost does not include and also a brochure of thrice as nice offers. Thrice as nice offers includes the price grid, all you need to known about the thrice as nice offer, how to book and terms and conditions, duly signed by the complainants. On 09.07.2009 the complainants departed for their trip. It is denied that OP by e-mail dated 12.06.2009 threatened the complainants, that visa for Schengan is valid till 22.07.2009. The complainants continued the tour as scheduled and have completed the rest of the tour.
The amount of Rs.1,800/- was collected as per UDF charges, which is the user development fee imposed by National Aviation Company of India Ltd., The terms and conditions signed by complainants clearly mentioned with OP reserves the right to amend the price published in the brochure due to any Government taxes or hike in the taxes before the departure. UDF charges are compulsory charges for all passengers, OP collected Rs.600/- per person amounting to Rs.1,800/- from the complainants. The complainants at the time of booking did not opt for any optional on the tour except Glacier 3000. Whereas, when the tour begun the complainants changed their minds and wanted to other optional. Hence OP collected 1,320 Euros towards the optional and the said amount is not included on the tour cost. It is denied that the complainants submitted their documents in time and that OP collected extra money and postponed the programme to July–2009. Due to the complainants failure to submit the documents on time, the schedule for May could not be confirmed. The collection of Rs.75,000/- towards cancellation charges as per the agreed terms and conditions between the parties. It is denied that OP failed to provide proper services and that OP humiliated complainants at the time of collecting a sum of Rs.75,000/- and before the journey. The complainants have concocted false and baseless facts to make out a false case for deficiency of services, so as to falsely enrich themselves while in fact; the OP is not deficient in services. The terms and conditions signed by the complainants provide the courts in Mumbai for exclusive jurisdiction to try and entertain the complaint. Hence it is prayed to dismiss the complaint with costs.
4. In order to substantiate the complaint averments, the complainant No.3 filed affidavit evidence and produced documents. The Deputy General Manager Accounts, M.Raghupathi filed affidavit evidence in support of defence version and produced documents.
5. Both parties filed written arguments. Arguments on both sides heard.
6. The complainants are claiming refund of certain amount collected by OP in respect of European Splendour Tour conducted by OP and for compensation towards mental agony and humiliation. At Para-5 of the version the preliminary objection regarding the jurisdiction to try and entertain this complaint taken by OP is that the parties have by the contract conferred exclusive jurisdiction upon the courts and forums at Mumbai. On this ground only the present complaint is to be dismissed. In view of this preliminary objection regarding territorial jurisdiction to entertain the complaint, the following point arise for our consideration.
“Whether this Forum has no territorial jurisdiction to entertain the complaint”.
7. We record our findings on the above points are:
R E A S O N S
8. In the cause title OP has been described as Cox and Kings (India) Ltd., No.22, 1st Floor, BMH Complex, K.H.Road, Bangalore-560 027, represented by its Senior General Manager, Sri.Suresh Pendakur. The 1st complainant is the husband of the 2nd complainant and 3rd complainant is the brother of 2nd complainant. At Para-11 of the complaint it is stated that the cause of action arose within the jurisdiction of this Forum, the complainants 1 to 3 are residents of Bangalore City, OP is also at K.H.Road, Bangalore within the jurisdiction of this Forum. On these grounds the complaint has been filed in this Forum.
9. At para-3 of the version it is pleaded that Cox and Kings (India) Limited is a legal entity being a company incorporated under the provisions of the Companies Act, 1956 having its registered address at Turner Morrison Building, 16 Bank Street, Fort, Mumbai-400 001. The address mentioned in the cause title of the complaint is a branch office and the branch office cannot be considered as a legal entity and therefore this complaint suffers from misjoinder of parties.
Thus it becomes clear that the registered office of OP is situated at Mumbai and OP is only a branch office. Annexure-B3 terms and conditions produced by OP at page-5 signed by 2nd complainant provide.
“LAW & JURISDICTION”: For all claims, disputes of whatsoever nature relating to the Tours markets/coordinated by Cox & Kings (India) Pvt.Ltd. the courts, forums and tribunals in Mumbai, India alone shall have exclusive jurisdiction. All tours are subject to laws, rules of RBI/GOI.”
As per the above clause-regarding jurisdiction both parties have agreed to confer exclusive jurisdiction of the courts, forums and tribunals in Mumbai. In view of the same this forum has no jurisdiction to entertain the complaint. Though OP branch office is situated at Bangalfore but the main principle office registered is situated at Mumbai and in view of the parties having agreed as per the terms and conditions relating the jurisdiction that all disputes pertaining to the said contract to the courts and fora at Mumbai, the complaint is not maintainable in this Forum.
10. In 2010 CTJ (CP)(SCDRC) Rajat Kumar V/s L & T (Komatsu) Ltd., Bangalore and others it is held that “where a Court lacks inherent jurisdiction over a subject matter, the parties cannot confer jurisdiction on such court by consent or by agreement. However, where two courts have the jurisdiction then the parties can by consent confer exclusive jurisdiction upon one by excluding the jurisdiction of the other”. As in this case the registered office of OP is situated at Mumbai and the Branch office is at Bangalore. In view of the registered office situated at Mumbai, the courts of Mumbai also have the jurisdiction to entertain the complaint; as such the exclusive jurisdiction is conferred by consent of parties upon the courts at Mumbai. Under these circumstances, we are of the view that the complaint filed int his Forum is not maintainable, as this fora has no jurisdiction to entertain, much less adjudicate the complaint. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant is ordered to be returned for presenting the same before an appropriate Forum at Mumbai in accordance with law. Considering the nature of dispute no order as to costs.
Send the copy of this order to both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 21st day of October 2011.)
MEMBER MEMBER PRESIDENT
Cs.
Complaint Filed On: 31.08.2009
Disposed On:21.10.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
21st Day of OCTOBER 2011
PRESENT:- SRI. B.S.REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI.A.MUNIYAPPA MEMBER
COMPLAINANTS | 1. S. Nagaraja, S/o Late Sri. R.Shivarudraiah, Aged about 62 years. 2. Smt. C. Annapurna, W/o Sri. S. Nagaraja, Aged about 49 years. 3. C. Rudra Prakash, S/o Late Sri.P.Chandrashekaraiah, Aged about 54 years. All the three are residing at: No.16/1, I Floor, 7th Cross, Kumara Park West, Sheshadripuram, Bangalore – 560 020. Advocate: Sri B. Shivamallappa V/s. |
OPPOSITE PARTY | M/s Cox and Kings (India) Ltd., No.22, I Floor, BMH Complex, K.H. Road, Bangalore – 560 027. Rep: by its Senior General Manager, Sri. Suresh Pendakur. Advocate: Sri C.M. Poonacha |
O R D E R
SRI. B.S. REDDY, PRESIDENT
This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986, by the complainant seeking direction against Opposite Party (herein after called as O.P.) to pay compensation of Rs.3,19,200/- towards damages, mental agony and humiliation and harassment caused to the complainants on the allegations of deficiency in service on the part of the OP.
2. In the complaint it is stated that the complainant No.1 being the husband of complainant No.2 and complainant No.3 is brother of complainant No.2 approached OP on 14.02.2009 and enquired about the group tour for European Splendor Tour with 30% cash back programme. OP assured the complainants with the offer. The complainants paid advance of Rs.9,000/- another sum of Rs.1,12,500/- was paid on 23.02.2009. After getting the invoice, the complainants paid Rs.2,37,043/- and also paid another amount of Rs.1,18,521/-. Totally the complainants paid travel charges of Rs.4,77,064/- to the OP. OP further demanded and collected an amount of Rs.25,000/- from each of the complainants totally Rs.75,000/-. In the e-mail OP threatened the complainants saying that Schengan visa is valid only till 22.07.2009, though the return journey of the complainants was on 27.07.2009. After e-mail conversation, OP confirmed the journey on 09.07.2009. On 06.07.2009 OP gave the second invoice / virtual tour dated 06.07.2009 regarding European Splendor tour mentioning the departure date 09.07.2009. OP further demanded another sum of Rs.1,800/- saying that it is towards tour cost, though the complainants are not supposed to pay, since they were ready to go with the tour, simply paid that amount during the tour OP illegally collected 1,320 Euros, in Indian currency it amounts to Rs.92,400/-. The so called Europe Splendor Tour is in the month of May and June which was a very good season for joyful tour, that is why the complainants have chosen and booked for the same in the month of February 14th 2009 itself, but one way or the other, OP postponed the tour, in conducting the tour in the month of May and June, though submitted their passports and paid the tour cost in the month of March itself to get the visa and other formalities like confirmation of ticket etc., but some how, the reasons best known to them, OP collected extra money and postponed the programme to July – 2009. Thus OP has not rendered the sufficient service, there is a deficiency of service on the part of the OP. OP illegally collected Rs.75,000/-, Rs.1,800/- and Rs.92,400/- as stated above totally amounting to Rs.1,69,200/-. OP is liable to repay the same to the complainants. For the deficiency of service, OP is liable to pay Rs.50,000/- to each of the complainants as compensation amounting to Rs.1,50,000/-. Even before issuing, confirmation letter, OP threatened the complainants in saying that your visa will expire on 22.07.2009 though the complainants have not completed the tour since their returning date is 27.07.2009. Thus the complainants claim in all Rs.3,19,200/-. Hence the complaint is seeking necessary reliefs stated above.
3. On appearance, OP filed the version contending that the complainants have not approached this Forum with clean hands OP not legal entity being a branch office, this Forum has no jurisdiction to entertain the complaint, as the Forum chosen by the parties is District Forum Mumbai. There is no deficiency of service on the part of the OP. The complainants approached OP on 14.02.2009 to book the tour of “Europe experience” for departure scheduled on 07.05.2009 and paid an advance amount of Rs.9,000/-. On 23.02.2009 part payment of sum of Rs.1,12,500/- towards tour cost amount subsequently, the complainants upgraded the tour from European experience to European Splendors. Whenever there is an up gradation of the tour, OP charges sum of Rs.5,000/- per person. As a gesture of goodwill OP did not charge any amount for upgrading the tour. The final payment was made by the complainants on 06.03.2009 of a sum of Rs.3,30,863=50. On the said date the complainants also made the payment of Euro 390 towards optional tour of Glacier 3000 and availed free trip to Mount Cox and Kings Gala with disco dancing and Mount Chamonix. At the time of booking it was made clear to the complainants that procurement of visa takes approximately 20 to 25 working days. Passports of complainants 1 and 2 were ready and handed over to the visa department immediately for further process. But OP received the documents complainant No.3 on 18th April 2009. Though the documents were received late for the third complainant, the visa could not be processed in time due to unavoidable circumstances. The OP also expressed its inability to confirm the journey on 07.05.2009 due to shortage of time to process the visa to the complainants as documents of complainant No.3 was submitted only on 18th April. The complainants then sought for postponement of the tour to the next available date. Hence OP was constrained to cancel the departure of the complainants scheduled on 7th May 2009 and re-schedule the tour to a subsequent as was sought by the complainants. As per the cancellation policy OP applied cancellation charges of Rs.40,000/- per person. The complainants requested OP to allow them travel on 4th June 2009 and not to apply the cancellation charges. OP as a goodwill gesture reduced the cancellation charges a sum of Rs.40,000/- per person to a sum of Rs.25,000/- per person and sum of Rs.75,000/- was collected towards the cancellation charges for the 7th May 2009 departure. On 6th May 2009 UK visa of complainant No.3 was obtained. Thereafter Op offered the complainants the following dates of travel in confirmation, i.e., 28.05.2009, 04.06.2009, 18.06.2009 and 09.07.2009. The complainants confirmed the last available date 09.07.2009 to travel as their Schengen visa validity was expiring on 22.07.2009, after the receipt of cancellation charges, complainants confirmed they are ready to travel on 09.07.2009. The total tour cost of Rs.3,30,863=50 neither includes the payment towards optional on 06.03.2009 nor the other optional taken on tour by the complainants. At the time of booking, the complainants were given the price grid interalia containing what the tour cost includes and what the tour cost does not include and also a brochure of thrice as nice offers. Thrice as nice offers includes the price grid, all you need to known about the thrice as nice offer, how to book and terms and conditions, duly signed by the complainants. On 09.07.2009 the complainants departed for their trip. It is denied that OP by e-mail dated 12.06.2009 threatened the complainants, that visa for Schengan is valid till 22.07.2009. The complainants continued the tour as scheduled and have completed the rest of the tour.
The amount of Rs.1,800/- was collected as per UDF charges, which is the user development fee imposed by National Aviation Company of India Ltd., The terms and conditions signed by complainants clearly mentioned with OP reserves the right to amend the price published in the brochure due to any Government taxes or hike in the taxes before the departure. UDF charges are compulsory charges for all passengers, OP collected Rs.600/- per person amounting to Rs.1,800/- from the complainants. The complainants at the time of booking did not opt for any optional on the tour except Glacier 3000. Whereas, when the tour begun the complainants changed their minds and wanted to other optional. Hence OP collected 1,320 Euros towards the optional and the said amount is not included on the tour cost. It is denied that the complainants submitted their documents in time and that OP collected extra money and postponed the programme to July–2009. Due to the complainants failure to submit the documents on time, the schedule for May could not be confirmed. The collection of Rs.75,000/- towards cancellation charges as per the agreed terms and conditions between the parties. It is denied that OP failed to provide proper services and that OP humiliated complainants at the time of collecting a sum of Rs.75,000/- and before the journey. The complainants have concocted false and baseless facts to make out a false case for deficiency of services, so as to falsely enrich themselves while in fact; the OP is not deficient in services. The terms and conditions signed by the complainants provide the courts in Mumbai for exclusive jurisdiction to try and entertain the complaint. Hence it is prayed to dismiss the complaint with costs.
4. In order to substantiate the complaint averments, the complainant No.3 filed affidavit evidence and produced documents. The Deputy General Manager Accounts, M.Raghupathi filed affidavit evidence in support of defence version and produced documents.
5. Both parties filed written arguments. Arguments on both sides heard.
6. The complainants are claiming refund of certain amount collected by OP in respect of European Splendour Tour conducted by OP and for compensation towards mental agony and humiliation. At Para-5 of the version the preliminary objection regarding the jurisdiction to try and entertain this complaint taken by OP is that the parties have by the contract conferred exclusive jurisdiction upon the courts and forums at Mumbai. On this ground only the present complaint is to be dismissed. In view of this preliminary objection regarding territorial jurisdiction to entertain the complaint, the following point arise for our consideration.
“Whether this Forum has no territorial jurisdiction to entertain the complaint”.
7. We record our findings on the above points are:
R E A S O N S
8. In the cause title OP has been described as Cox and Kings (India) Ltd., No.22, 1st Floor, BMH Complex, K.H.Road, Bangalore-560 027, represented by its Senior General Manager, Sri.Suresh Pendakur. The 1st complainant is the husband of the 2nd complainant and 3rd complainant is the brother of 2nd complainant. At Para-11 of the complaint it is stated that the cause of action arose within the jurisdiction of this Forum, the complainants 1 to 3 are residents of Bangalore City, OP is also at K.H.Road, Bangalore within the jurisdiction of this Forum. On these grounds the complaint has been filed in this Forum.
9. At para-3 of the version it is pleaded that Cox and Kings (India) Limited is a legal entity being a company incorporated under the provisions of the Companies Act, 1956 having its registered address at Turner Morrison Building, 16 Bank Street, Fort, Mumbai-400 001. The address mentioned in the cause title of the complaint is a branch office and the branch office cannot be considered as a legal entity and therefore this complaint suffers from misjoinder of parties.
Thus it becomes clear that the registered office of OP is situated at Mumbai and OP is only a branch office. Annexure-B3 terms and conditions produced by OP at page-5 signed by 2nd complainant provide.
“LAW & JURISDICTION”: For all claims, disputes of whatsoever nature relating to the Tours markets/coordinated by Cox & Kings (India) Pvt.Ltd. the courts, forums and tribunals in Mumbai, India alone shall have exclusive jurisdiction. All tours are subject to laws, rules of RBI/GOI.”
As per the above clause-regarding jurisdiction both parties have agreed to confer exclusive jurisdiction of the courts, forums and tribunals in Mumbai. In view of the same this forum has no jurisdiction to entertain the complaint. Though OP branch office is situated at Bangalfore but the main principle office registered is situated at Mumbai and in view of the parties having agreed as per the terms and conditions relating the jurisdiction that all disputes pertaining to the said contract to the courts and fora at Mumbai, the complaint is not maintainable in this Forum.
10. In 2010 CTJ (CP)(SCDRC) Rajat Kumar V/s L & T (Komatsu) Ltd., Bangalore and others it is held that “where a Court lacks inherent jurisdiction over a subject matter, the parties cannot confer jurisdiction on such court by consent or by agreement. However, where two courts have the jurisdiction then the parties can by consent confer exclusive jurisdiction upon one by excluding the jurisdiction of the other”. As in this case the registered office of OP is situated at Mumbai and the Branch office is at Bangalore. In view of the registered office situated at Mumbai, the courts of Mumbai also have the jurisdiction to entertain the complaint; as such the exclusive jurisdiction is conferred by consent of parties upon the courts at Mumbai. Under these circumstances, we are of the view that the complaint filed int his Forum is not maintainable, as this fora has no jurisdiction to entertain, much less adjudicate the complaint. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant is ordered to be returned for presenting the same before an appropriate Forum at Mumbai in accordance with law. Considering the nature of dispute no order as to costs.
Send the copy of this order to both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 21st day of October 2011.)
MEMBER MEMBER PRESIDENT
Cs.
