Per Mr.B.S.Wasekar, Hon’ble President 1) The complainant has filed this complaint u/s 12 of the Consumer Protection Act, 1986. According to the complainant, she came across the tours organized by the opposite parties and decided to make a tour of South Africa, Kenya with Victoria Falls Tour(V1) for the period from 14th September, 2011 to 29th September, 2011. The complainant paid Rs.85,990/- + USD 2850 on 5th January, 2011 and 2nd August, 2011 and opposite party issued receipt to that effect. The opposite party issued Electronic Ticket, Passenger Itinerary and Receipt alongwith reservation details for tour V1160911. The complainant and other tourists were asked to report at International Airport, Mumbai at 12.00 midnight on 13th September, 2011. When the complainant arrived at International Airport, Mumbai, Tour Manager Shri Satish Gharkar informed that passports were still to be received by him. The complainant and other co-tourists waited till 02.30 hrs. At that time they were informed about the arrival of passports at Domestic Airport from Delhi and Kesari employee was on way to collect the same. The check in time for Kenya Airways was till 02.45 hrs. and the schedule departure was 03.10 hrs. The person carrying passports arrived at International Airport at 02.40 hrs. Passports were handed over to the passengers and they proceeded to enter the entry gate but security stopped them. They were told that check in counters were closed and the airline staff left the counters. They were told that it was not possible to allow them due to delay. Entire group was waiting at Airport outside the check in gate on footway with their luggage from 12.00 midnight to 04.45 hrs. It was raining heavily. Finally, the group was accommodated at the Orchid Hotel, Vile Parle till the next available flight to Nairobi. 2) On 14th September, 2011, the group was asked to leave the hotel at 06.30 P.M. and to report the domestic airport. The group was to board a Go Air flight from Mumbai to Delhi departing at 20.30 hrs. From Delhi, the group was to board another flight (Qatar Airways) departing at 04.30 hrs. from Nairobi via Doha. The group reached at Nairobi on 15th September, 2011 at 15.00 hrs. (Nairobi Time) As per the schedule, the group should have reached Nairobi on 14th September, 2011 at 06.35 hrs. The group lost 33 hours and thereby missed the entire travel plan of day one and two. On third day, the group reached at MasaiMara late at evening instead of morning. The day was spent in traveling and there was no sight seeing. The tour actually started from day three as per original schedule. The group lost their two and half days tour experience. 3) The complainant was totally disappointed due to skip of schedule programme. Due to casual approach of the opponent, the passports were not well in hand. They have wasted their time because of negligence and improper planning of the opponent. The complainant and other co-tourists suffered mental tension and physical inconvenience. It was the duty of the opponents to conduct the tour as per schedule. Therefore, the complainant issued letter dated 3rd October, 2011 and pointed out deficiency in service of the opponents and demanded compensation. Again, letter was issued on 28th November, 2011 however, there was no response. Therefore, the complainant has filed this complaint directing the O.P. to refund Rs.32,000/- towards ticket fares and Rs.50,000/- towards compensation for mental agony and harassment. 4) The opposite parties filed their written statement. It is submitted that after knowing the details of various tour programmes conducted by the opponent, the complainant found the tour known as V1 having Tour Code No.V1 160911/22(V1) suitable to her. The brochure was handed over to the complainant. Tour registration form was handed over to the complainant. As per the said tour registration form, tour was to commence from 13th September, 2011. For this tour, VISA was necessary. The opposite party acts as facilitator to obtain VISA. The grant of VISA is discretion of South Africa, Kenya and Zimbabwe High Commission. All documents submitted to the opposite party for VISA were forwarded to the respective consulates. The opposite party do not take responsibility of any rejection of VISA. In case VISA is rejected due to incomplete/delayed documents or due to any other reason, the opposite party shall not be responsible. All charges for VISA are to be borne by the passengers. The opposite party has right to amend or alter any service mentioned in the itinerary and the guests shall have to continue with the tour as amended or altered. The complainant was aware about these terms and conditions. 5) On 13th September, 2011 at 00.10 hrs., the complainant was present at International Airport. The Kenya Airways was scheduled to depart at 03.10 hrs. of 14th September, 2011 for Nairobi. The Tour Manager was also present and was waiting for passports which were coming from Delhi. The opponents received stamped passports in their hand of all 41 passengers. The employee of opposite party was at domestic airport to collect the passports. The employee of the opposite parties received passports at about 02.20 A.M. and reached at International Airport at about 02.40 A.M. and handed over all passports to the guests and thereafter they rushed towards the check in counter to board the flight. All the guests reached in check in counter at about 02.45 A.M. but the staff had left the counters as the flight departure was 03.10 hrs. The Manager tried to accommodate for delayed check in but it was not allowed. The Tour Manager was unable to arrange the tour therefore arrangement was made for all the guests to accommodate Hotel Orchid, Vile Parle. All the guests were ready and willing for the same. On 14th September, 2011, the opposite parties made arrangement for flight Mumbai-Delhi-Nairobi for all the guests. They reached Nairobi early in the morning. All the guests enjoyed the tour. They could have cancelled their tour at Mumbai airport but they have opted to continue the tour. The opposite party incurred expenses for cancellation of air tickets of all 41 guests. They incurred expenses for accommodation at Hotel Orchid. The opposite party tried level best to book the first flight for Nairobi. The opposite party incurred extra expenses of Rs.13,34,376/- for this tour. The opposite party paid Rs.8,000/- per person as goodwill gesture to all the guests. It is denied that the complainant lost her tour experience due to negligence of the opposite party. The complainant is not entitled for the relief as prayed and the complaint is liable to be dismissed. 6) After hearing both the parties and after going through the record, following points arise for our consideration. POINTS Sr. No. | Points | Findings | 1) | Whether there is deficiency in service ? | Yes | 2) | Whether there was delay due to negligence of the opposite parties ? | Yes | 3) | Whether the complainant is entitled for the compensation as prayed ? | Partly Yes | 4) | What Order ? | As per final order |
REASONS 7) As to Point No. 1 to 3 :- There is no dispute that the complainant booked the tour for South Africa, Kenya with Victoria Falls Tour (V1) for the period from 14th September, 2011 to 29th September, 2011. It is also not disputed that the complainant paid Rs.85,990/- + USD 2850 on 5th January, 2011 and 2nd August, 2011. The opposite party issued Electronic Ticket, Passenger Itinerary and Receipt alongwith reservation details for Tour V1160911. It is also not disputed that the complainant and other co-tourists were asked to report at International Airport, Mumbai at 12.00 midnight on 13th September, 2011 and accordingly the complainant and other co-tourists arrived at International Airport, Mumbai. Admittedly, by that time passports/VISA of complainant and other co-tourists were not received. The schedule departure of the flight was 03.10 hrs. and check in time was till 02.45 hrs. The person carrying passports/VISA arrived at International Airport at 02.40 hrs. and the passports/VISA were handed over to the complainant and other co-tourists and they were asked to proceed towards the entry gate. Admittedly, check in time was over and check in counters were closed. Therefore, the complainant and other co-tourists could not board the flight. All these facts are not disputed by the opposite party. The dispute is about the late arrival of passports/VISA and who is responsible for it. According to the opponents they act as facilitator to obtain VISA and they are not responsible for it. On the other hand, it is the case of the complainant and other co-tourists that they have deposited the charges with opponents for obtaining VISA and deposited the passport with the opponents for getting VISA. Therefore, it was the opponent’s responsibility to obtain VISA within time. It is not disputed by the opponents that they have received the deposit for the expenses of VISA and also collected the passports of the complainant and other co-tourists for obtaining VISA. Once they have received the charges for the expenses of VISA and collected the passports for submitting it to the concern department, the opponents can not avoid their responsibility to obtain the VISA within time. The learned advocate for the opponents has drawn our attention to the brochure containing terms and conditions. These terms and conditions are not on the schedule of tour and other receipts given to the complainant and other co-tourists. Merely pointing terms and conditions written on brochure in small print will not help the opponents to avoid their responsibility. It was necessary for the opponents to explain it to the complainant and other co-tourists. It shows that the opponents are avoiding their responsibility on flimsy ground after receiving the amount from the complainant and other co-tourists. Therefore, the submission of the opponents about the terms and conditions can not be accepted. 8) As per reply of the opponents, due to bomb blast on 7th September, 2011 at Delhi Court, there was high alert at Delhi on 13th September, 2011 and therefore they could not collect the VISA well in advance. The said bomb blast was on 7th September, 2011. The opponents received the amount and collected the passports of the complainant and other co-tourists in the month of August-2011. It is not the case that nobody was allowed to enter Delhi. Considering the known situation, it was necessary for the opponents to make arrangement to collect the VISA well in advance. VISA arrived late and therefore flight was missed. It shows the negligence of the opponents. According to the opponents, the situation was beyond their control but as there was sufficient time with the opponents, it was necessary for them to make arrangement well in time. It is submitted by the learned advocate for the opponents that right was reserved by the opponents to change or alter the tour programme but it is not their contention that they have changed/altered tour programme and informed the complainant and other co-tourists. Moreover, once they have accepted the amount from the complainant and other co-tourists for the tour programme declared by them it will not be proper to change it without informing the complainant and other co-tourists. The complainant and other co-tourists accepted the tour programme as it was convenient to them. Therefore, the opponents can not change it at the inconvenience of the complainant and other co-tourists. 9) Admittedly, tour for the first two and half days was missed. The opponents are responsible for it. They have accepted the charges for it therefore they are responsible to refund the proportionate amount to the complainant and other co-tourists. As per reply of the opponents they have offered Rs.8,000/- to each tourists. The refund should be proportionate to the amount received by the opponents for the tour programme. The complainant has claimed Rs.32,000/- towards the fares paid. We think amount of Rs.15,000/- is reasonable towards refund of tour charges. 10) As discussed above, the opponents could not arrange VISA well in advance thereby the complainant and other co-tourists missed their two and half days tour. As the tour programme was outside India, the complainant and other co-tourists can not arrange it again in that amount. They could not enjoy the tour as per their wish. Therefore, they suffered from mental agony. The opponents are responsible to pay the compensation for mental agony to the complainant and other co-tourists. The complainant has claimed compensation of Rs.50,000/- for mental agony and harassment. We think compensation of Rs.15,000/- will suffice the purpose. This amount is including the amount received by the complainant if any, from the O.P. Besides this, the complainant is entitled for the cost of this proceeding. Hence, we proceed to pass the following order. |
