Order No. 20 dt. 30/03/2017
The case of the complainants in brief is that the complainants approached the o.p. for the purpose of booking American Splendour Tour. The complainants along with other passengers were scheduled to depart on 16.5.13 from Kolkata. The complainant no.1 entered into a contract with o.p. for the purpose of the said tour. The complainant no.1 at the time of booking the authorized representative of o.p. informed for the entire package will cost them of Rs.11,51,758/-. The complainant no.1 was informed by the representative of o.p. that if for any reason the visa is not granted and/or refused, rejected by US Consulate on any ground then o.p. would return the entire amount paid to o.p. except the actual visa fees for 3 heads i.e. Rs.27,360/- plus Rs.5000/- per head for the processing charges for their end. The complainant no.1 provided all the documents relating to the preparation of the processing for the trip of the complainants. The complainant no.1 along with his wife and child were called at the office of US Consulate for the biometric formalities which all three of them duly complied with, subsequently on 24.3.13 duly attended and completed all the formalities as arranged by o.p. The complainants were asked to pay the balance amount and the complainants made payment of the balance amount of Rs.7 lakhs between 19.3.13 an 8.4.13. The o.p. was informed that US visa would be issued in favour of the complainants and the complainants can make necessary arrangement for the trip. The complainants in total paid an amount of Rs.11,15,758/-. In spite of receiving the said amount the complainants were not informed that US visa had been rejected. On 11.5.13 o.p. informed the complainants that the visa had not been granted by US Consulate and the trip could not be availed of by the complainants. The complainants thereafter demanded the amount paid by them but o.p. failed to return the amount of Rs.11,15,758/-, but only a cheque was issued to the tune of Rs.6,82,195/-. The complainant by filing this case praying for balance of Rs.4,33,567/- along with compensation of Rs.5 lakhs and litigation cost of Rs.40,000/-.
The o.p. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that at the time of entering into the contract with o.p. by the complainants for the said tour a declaration was given by the complainant that they understood and accepted the terms and condition s of the cancellation and other procedures. The o.p. stated that after getting the documents from the complainants, the o.p. applied for the complainants’ visa to USA. However, the US Consulate retained the passport of the complainants which was released without visa and it was communicated to the complainants that the Canada visa cannot be applied till the USA visa comes out. The o.p. in the w/v specifically stated that in case of cancellation the certain charges are required to be detected. A list of the said charges were also mentioned in the w/v. The o.p. stated that the complainants claiming for refund of the entire tour cost deliberately neglecting the booking conditions which had been duly accepted by the complainants at the time of booking without raising any objection in any manner whatsoever. Since the Visas were not provided by US Consulate, therefore the tour had to be cancelled. As per the terms and conditions of the booking clause the amount was refunded to the complainants. Since the complainants knowing fully well that they will not be entitled to get the entire refund of the amount filed this case suppressing the actual facts and circumstances and also the terms and conditions of the contract entered into between the parties which had taken place at the time of booking of the said tour. In view of such fact o.p. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainants booked for the said tour.
- Whether the complainants paid the amount as claimed by them.
- Whether the tour was cancelled due to non providing of visa by US Consulate.
- Whether there was any deficiency in service on the part of o.p.
- Whether the complainant will be entitled to get the relief as prayed for.
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainants argued that as per the advertisement made by o.p. the complainant no.1 expressed his desire for availing of the American Splendour Tour with o.p. The trip was scheduled to be commenced on 16.5.13 and the trip covered New York, Washington D.C. Niahara,
Torento, Montreal, etc. The complainant no.1 was informed by o.p. that the entire package will cost them of Rs.11,51,758/- inclusive all expenses. The complainants were informed by the representative of o.p. that for any reason if the visa was not granted and/or refused or rejected by US Consulate on any ground then o.p. would return the entire amount paid to o.p. On the basis of the said assurance the complainants paid Rs.1,24,500/- on 13.12.12 and subsequently paid further installments in such manner. The complainants paid total amount of rs.11,15,758/-. Ld. lawyer for the complainants emphasized that in spite of payment of the entire amount the complainants for biometric test appeared before the concerned authority on 24.3.13 and at that time they were not also informed that they will not be provided with visa. The complainants subsequently paid an amount of rs.7 lakhs between 19.3.13 and 8.4.13. After the lapse of several test the complainants were informed that US visa would be issued in favour of the complainants and the complainants can make arrangement for their trip, but suddenly the complainants were informed on 11.5.13 just prior to the date of departure which was scheduled to be held on 16.5.13 the complainants were informed that US visa had not been granted by US Consulate and the trip was cancelled. After coming to know of the said fact the complainants became astonished and his prestige was lower down to his relatives and other friends for which the complainants had suffered mental harassment as well as financial loss. As such ld. lawyer for the complainants emphasized that a direction be given upon the o.p. to repay the balance amount withheld by o.p. and compensation and other relief.
Ld. lawyer for the o.p. argued that the complainants at the time of booking for the said tour entered into a contract and in the contract itself it was mentioned that in case of cancellation of tour the certain charges will be deducted and the complainants knowing fully well that those charges were deducted but by suppressing the material facts the complainants filed this case praying for the balance amount. In order to show the bonafide of o.p. and also the complainants were paid an amount of Rs.6,82,195/- the balance amount which was deducted from the total amount paid by the complainants and as per the terms and conditions of the contract the said amount was deducted. Therefore there was no deficiency in service on the part of o.p. and accordingly, ld. lawyer prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainants booked for the said tour with the o.p. It is also admitted fact that representative of o.p. visited the house of complainant no.1 and apprised him that in case of cancellation of tour the entire amount that would be paid by the complainants would be returned to the complainants. The complainants as per the terms and conditions of the contract paid the amount to the representative of o.p. which has not been denied by o.p. From the said evidence on record it is an admitted fact that the complainants paid an amount of Rs.11,15,758/-. The complainants attended the biometric test arranged by o.p. and the complainants also handed over the required documents including the passport to o.p. The complainants also paid the amount as per the terms and conditions of the said contract. The complainants repeatedly asked the o.p. regarding any impediment that may crop up with regard to the said tour which o.p. assured the complainant no.1 that the visa would be available and there would no hindrance in the said tour. After getting assurance from o.p. and whenever o.p. informed the complainants that they can make arrangement for the said tour the complainants were certainly assured that the tour would be conducted as per the scheduled programme. Subsequently just a few days before the date of trip which was scheduled to be commenced on and from 16.5.13 the complainant no.1 was informed on 11.5.13 over phone that since the visa had not been granted by US Consulate and as such, the trip was cancelled. After coming to know of the said cancellation of the tour the complainants became astonished and their prestige was lowered down amongst the relatives and friends who got the information that the complainants would visit USA on the scheduled date. The complainant no. 1further demanded the amount paid by him but o.p. after deducting huge amount from the amount of Rs.6,82,195/- and it was transferred in the account no.3764 maintained with UBI having its branch at Pilkhana, Howrah on 24.9.13. The complainants were paid the less amount of Rs.4,20,567/- but in reality it would be Rs.4,33,560/-. The complainants accordingly demanded the said amount which has been denied by o.p. resulting in filing of the case.
From the facts and circumstances of the case and from the materials on record it appears that the complainants paid the amount as per the demand made by o.p. and all the formalities were done by the complainants as per the requirement of o.p. But it is curious enough that the tour could not be held because of the non granting of visa by US Consulate. Since the complainant no.1 was assured by the representative of o.p. that in case of cancellation of the tour the entire amount would be paid, the complainants accordingly demanded the said amount, but o.p. failed to pay the entire amount and some balance was deducted amounting to Rs.4,33,560/-. The facts and circumstances also prove that there was deficiency in service in not providing the balance amount to the complainants whenever the complainant no.1 was assured that the entire amount would be paid by o.p. Such fact clearly proves that there was deficiency in service on the part of o.p. and the complainant will be entitled to get the relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.647/2013 is allowed on contest with cost against the o.p. The o.p. is directed to pay the balance amount of Rs.4,33,563/- (Rupees four lakhs thirty three thousand five hundred sixty three) only to the complainant along with compensation of Rs.50,000/- (Rupees fifty thousand) only for harassment and mental agony and litigation cost of Rs.10,000/- (Rupees ten thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
