Order-21.
Date-20/03/2018.
AUTHORED BY. RABIDEB MUKHOPADHYAY,MEMBER.
The complainants’ case, in brief, is that most of the complainants No.1 to 6 are all above 70 years and proficient in their respective fields. The Complainants 1 to 6 approached the OP ‘News Travel Agency’, one of the renowned travel agencies who organize and / or conduct tours for abroad. Since complainants were interested in making tour to Cambodiaand Indonesia,they approached the OPs for organizing the trip from 16.11.2005 to 26.11.2005.
The OP-1, Travel agency ensured all types of arrangements including purchase of tickets, food and lodging, providing the guide, arrangements of hotels, conveyance, sightseeing etc. during the tour against a payment of Rs.1,02,955/- per head for 09 nights and 10 days starting from 16.11.2015 to 26.11.2015. The OPs initially sent rate for the package on 14.07.2015 and revised rate on 16.07.2015 and further sent another mail on package particulars on 11.08.2015. The OPs confirmed about hotel booking, visa for Cambodia to be handed over on arrival at the airport, and other related requirements in respect of the tour and each of the
Complainants paid Rs.1,02,955/-. The Complainants arrived at the airport at 09.50 p.m. and contacted the Air Asia Counter at for formalities i.e. point to point check by the Airport Personnel and the authority asked them to produce Malayasian Visa but the same was never mentioned and / or apprised by the News Travel Agency. On contact by Air Asia Staff with the OPs over phone, OPs confirmed that they were not aware of such procedures and law and in absence of this, complainants’tickets were cancelled which was informed to the Travel agency via e-mail. In reply, the OP requested the Complainants to buy another fresh ticket from Kuala-Lumpur to Indonesia on 18.11.2015 at their own expenses to avail the Indonesia package trip.
The Complainants were exhausted and their all energy was lost and they also became victim of mental agony, unnecessary harassment due to the callousness of the OPs. OP gave no assurance to refund the paid up money. The Complainants thereafter wrote letters dated 02.12.2015 and also other two letters last of which was written on 11.01.2016 for refund of their money but all were in vain. Complainants lodged complaints before the Jt. Secretary, Consumer Affairs Department, Govt. of West Bengal, who in turn issued a notice dated 06.04.2016 to OPs but to no good.
It is contented that OPs purchased point to point air tickets of their own planning through their Agency M/s Akbar Travels Agency, but they ignored that the visit from Kolkata to Kuala-Lumpur would be abortive if there is no arrangement of visa in advance, which OPs did not arrange. Airport authority has also confirmed that to land at Kaula-Lumpur, Malaysian Visa is absolutely necessary and no traveler would be allowed to enter Malaysia without Visa but the OP Travel Agency lacked this.
It is stated by the OP Travel agency that they were not aware of the Rule for Malaysia Trip, but for refund of money, the OPs have turned a deaf ear and it is proved that it is sheer deficiency of service on their part. Complainants are reputed persons in their respective fields. They have lost their prestige and dignity due to failure on the part of the OPs to comply the necessary formalities for landing at Kaula-Lumpur. The Complainants have suffered mental anxiety, physical and mental harassment, loss of social prestige and financial loss etc. and claimed compensation at the rate of Rs.1,00,000/- each along with order for refund of entire tour money for Rs.1,02,955/- to each of the Complainants with interest at the rate of 7 percent from. 16.11.2015 till payment of Rs.6,17,730/-, compensation at the rate of Rs.2,00,000/-, order for cancellation of license to OPs as travel agent and litigation cost of Rs.50,000/-.
WRITTEN VERSION
The OPs filed written version and stated that the instant complaint is not maintainable either in fact or in law. The complaint is barred by the law of Res-judicata, estoppels acquiescence and waiver and barred by limitation and prayed for dismissal of the case. OPs’ Ld. Advocate advised them to deal only those paragraphs which are material.
The OPs alleged that the impugned paragraphs under objection are deemed to have been denied by these objecting parties. The OP-1 received a mail on or about July 3,2015, from Complainant No.1 along with an itinerary in respect of a tour programme to visit Cambodia and Indonesia where Complainant requested to offer the best price for travelling in the month of November,2015 and asked to maintain strict compliance of the said itinerary. In the said itinerary there was no mention of arrangement of any transit visa even the OP-1 was having a continuous transaction regarding purchase of ticket with ‘Akbar Travels’, also was not informed about requirement of transit visa required for entry and exit through Malaysia, more particularly kuala-Lumpur. OP-1 was made to understand by Akbar Travels that no transit visa for passage through Kuala-Lumpur was required to reach Siem Reap, the OP-1 had no knowledge about this.
Complainant no.1 on getting the mail dated July 13, 2015 from OP-1, suggested for changes of itinerary and asked for sending revised rate for their consideration. OP-1 instructed the Mercury Travels at 46C, Chowringhee Road to do bookings of hotels, vehicles and guides and also instructed the said Akbar Travels to send revised Air fare charges including baggage both way but this time alsoAkbar Travels did not inform them about the Visa for Malaysia. On instruction of OP-1,Akbar Travelsbooked air tickets and on 25 July, 2015, they sent hard copies of tickets. The OP-1 stated that even on simple perusal of the tickets, it could not be understood that the tickets were purchased by Akbar Travels and address and telephone numbers were also of the Agent, Akbar Travels., where OP-1 was in dark and the whole matter was between Air Asia and the Akbar Travels.
At WV para-9, OP-1 admitted that it had no knowledge regarding the requirement of Malaysian Transit Visa, which was not informed either by Air Asia or by Akbar Travels.
The complainants filed Evidence on Affidavit but the OPs did not.
Points for Decision
1) Whether the complainants are consumers under the OPs;
2) Whether the OPs are deficient in rendering promised service;
3) Whether the complainants deserve relief.
Decision with Reasons
1) We have perused the documents filed by the complainants including copy of Cambodia package with names of hotels, revised day-wise package rates inclusion and exclusion of items in connection of the tour, Air fare charges, Visa charges sent to complainants by Kamal Paul on behalf of OP-1, copy of Final Confirmation, Air Asia Flight Schedule, Visa Notes with charges, requisites for documents required for Arrival in Indonesia, letter dated 16/11/2015 to OP-1 by Complainant no. 1, OP-1’s email dated 18 Nov, 2015 on Bali Trip, Complainant’s letter dated 02/12/2015 to OPs stating their deficiency in service in connection with Cambodia and Indonesia visit and their inability to avail the suggested tour to Bali on their own cost, Complainants’ letter dated 23 Dec, 2015 on the deficiency of OPs and warning the OPs of their taking recourse to C. P. Act, 1986, and copies of letters and documents filed by the complainants to the Consumer Affairs Department for Mediation of their grievances—all filed by the complainants. OPs filed no documents with the WV and subsequently.
2) If we look back to the proceedings since inception in 2016, we may assess how OPs tried to drag the case by repeatedly interrupting the smooth process of Consumer Forum in the veil of legal rights, thereby frustrating the justice sought by 6 very senior citizens as complainants as well as ignoring the prescribed time frame of the Consumer Protection Act, 1986.
On the very day (25/7/16) of appearance, Ld. Advocate for all OPs filed Vakalatnama and sought time to file WV. Time was allowed. On the next date(10/8/16), OPs filed WV but at the same time filed a petition under Order-1, Rule 10(2) of CPC to implead Akbar Travels and Air Asia and after due hearing, the petition was dismissed. Complainants were to file Evidence on 24/8/16. On 24/8/16, Complainants filed Evidence, copy of which was received by the Ld. Advocate of OPs, who were to file Questionnaire on 09/9/16.
OPs were absent on 09/9/16 and no steps were taken by them. OPs were to file Evidence on Affidavit on the next date (22/9/16). On the said date, OPs filed a petition, instead of filing Evidence, stating that an R.P. bearing No. RP/159/2016 was pending before the Hon’ble State Commission. More than 15 months elapsed to satisfy OPs’ legal right.
More stunning fact is this that Hon’ble State Commission finally dismissed the R.P. on 27/11/2017 after which fixed date at this Forum was on 20/12/2017 but the OPs did not make appearance nor did they file copy of the Final Order of the Hon’ble State Commission, though Ld. Advocate for Complainants filed an internet copy of the order on 20/12/17. We see that OPs remained absent on several hearings in the Hon’ble State Commission also.
On the next date (08/01/2018), OPs changed their Advocate, one Dilwar Khan who appeared with a certified copy of the final order but without anyVakalatnama. On the next day (31/01/18), OPs filed a petition with an undertaking to file Vakalatnama and praying time to file Evidence on Affidavit. Ld. Advocate for complainants raised vehement objection against the proposed adjournment drawing the plight of ailing senior citizen complainants and dilatory practice of the OPs. In spite of such objection, the petition was allowed at a cost of Rs 2000/- to be paid to the complainants and next date (08/02/18) was fixed for evidence, vakalatnama and payment of cost by OPs. OPs were absent and no compliance of order dated 31/01/18 was done by OPs. The case was then listed on 23/02/18 for hearing of Argument with Brief Notes of Argument as per C.P.Regulations. There was Resolution of Bar on 23/02/18 though most of the listed cases were attended on presence of concerned Advocates but Ld. Advocate for OPs took the advantage and remained absent.
Stunningly, OPs again changed their Advocate (now 3rd one) and the new Advocate, Debashis Nandi filed Vakalatnama and instead of complying with the order dated 31/01/18 including payment of cost of Rs 2000/-, verbally prayed for time. In spite of our repeated directions to present arguments because they had received copy of E/Chief of complainants, he did not do so and we heard arguments as per list, from the Advocate for Complainants in presence of OPs’ Advocate. We gave him liberty to file his written argument within 9th March. Instead of utilizing the opportunity to file B. N. A., Ld. Advocate again filed a petition on 09/3/18 praying for time for hearing of Argument, which had already been completed in his presence on 07/3/18. The said petition is kept with records.
3) Such detailed information would not have been required but to locate the intention of OPs to avoid the legal process with one plea or the other, in order to abort the equity and justice to the deserving party. All contending parties are to assist the court to find out the truth for delivery of proper justice in the instant case, OPs always tried to play the hide and seek game under the veil of legal rights. If such attitude is indulged, disposal of cases will take unending time, which cannot allow.
4) It needs to be importantly mentioned that now a days, one could easily buy air tickets and book hotels etc. from home and could arrange sightseeing too through internet connection by paying money on line and that could be more cost effective. But without undertaking such individual efforts, complainants approached OPs being a reputed travel agency, paying higher cost, surely for tension-free, cozy and comfortable journey. It should also be mentioned that the complainants did not have any contact or contract with the Akbar Travels or Air Asia, as has been intimated to OPs by the complainants in their (latter’s) letter. It is also admittedly true that OP-1 took all the money for the tour including air ticket and Visa charges, and air fare and Visa charges have been intimated by OP-1, vide page-9 of email of OP-1 dated 20/7/2015 sent to complainants. Complainants did not pay a single farthing to Akbar Travels or Air Asia; and complainants no.1&2also stated at para-2 of their letter dated 23/12/15 to OP-1 that they issued cheques to OP-1, and not to Akbar Travels or Air Asia.. It is the OP-1 that paid price of tickets to Akbar Travels who, in turn, booked air tickets, being the Agent. So, for any lapse in the way of satisfactory tour undertaken and arranged by OPs in favour of complainants, it is the only OPs who shall be responsible.
5) Object of OP-1 has been elaborately stated at WV para-7(a), wherefrom it can be expected that OP-1 has wide widespread knowledge, experience and expertise to deal or handle with travelling formalities.
But alarmingly, OPs admitted at WV para-7(g) that they could not ascertain that any transit Visa was required for entry and exit through Malaysia, more particularly, Kuala-Lumpur. This is also admitted by OP-1 in its letter dated 04/01/16 to complainant no.1. Same admission has been made by OPs at WV para-9.
6) At WV para-7(j), OPs tried to shake off their responsibility by stating that all necessary requirements for the entire air passage was a matter between the said Air Asia and Akbar Travels and insisted on the Air Asia and Akbar Travels to be impleaded as parties to the dispute. OP-1 also admitted that OP-1 was fully dependent upon Akbar Travels to appraise it of all requisites and requirements. OP-1 also stated at WV-para7(g) that OP-1 was made to understand that no transit Visa was required.
7) But it is to be mentioned that said Air Asia and Akbar Travels have no contractual relations with the complainants and the complainants admittedly did not pay money as consideration to Air Asia and Akbar Travels. There is no privity of contract between the complainants and the Air Asia and Akbar Travels. So, such plea of escaping the liability has no leg to stand upon.
8) OPs’ efforts for making Air Asia and Akbar Travels as necessary parties have also been dismissed by Hon’ble State Commission in RP No. 159/2016.
9) OPs’ contention at WV para-7(d) regarding itinerary given by complainant no.1 through mail to OP-1 has no reason because it was a model one. OP-1 considered the same and accepted such itinerary but the tour had to be organized satisfactorily, which OPs failed to comply with, resulting in the cancellation of the trip.
10) No evidence has been filed by the OPs to substantiate their claim stated at WV para-7(i) regarding instruction and payment of expenses to Mercury Travels having its office at 46C, Chowringhee Road, Kolkata-700071 after getting suggestions from complainant no. 1 through email. No document for disbursement of any amount to the said Mercury Travels has been filed by OPs. In fact OPs filed not a single proof or document in support of their version. So, such statement seems baseless.
11) From above discussions, it is crystal clear that the complainants having paid full consideration money to OPs for the trip, are consumers under the OPs as contemplated under section 2(1)(d)(ii) of the Consumer Protection Act, 1986. The OPs, on the contrary, severely failed to provide promised service leading to the cancellation of the proposed tour and they are deficient in terms of section 2(1)(g) read with section 2(1)(o) of the Act, subjecting the very senior citizen complainants to distressing physical harassment and mental agony. The complainants, therefore, deserve compensation.
12) It is also clear that what was promised by OPs through papers, mails and conversations with the complainants, could not be honoured by OPs. They have been benefitted at the cost of the complainants and they gather money from the public at large to thrive with their business and for their ulterior gain. This is sheer unfair trade practice as defined under section 2(1)(r) of the Act.
13) Before concluding our discussions, we must not ignore the pitiable conditions and experience the complainants underwent at the Airport when they were not allowed to security check even after baggage checking. The old complainants are reportedly of high profile tier of the society and they deserve proper respect and dignity which were crushed in front of other passengers of aircrafts and they were humiliated as a consequence of the conduct of OPs for their very lackadaisical and careless attitude. OPs had some duties to perform after they had taken money, they failed to perform such duties and the complainants were affected. So, they are very negligent in this count too.
In the detailed analysis of discussions as above, we are constrained to pass
ORDER
That the complaint be and the same is allowed on contest, in part, against the Opposite Parties in terms of section 13(2)(b)(i) of C. P. Act, 1986;
That the Opposite Parties are directed to jointly and severally refund Rs 102955/- to each of the complainants with 8 percent interest (to compensate financial loss) on the respective amounts for the period from 02/12/2015 till date of actual payment, Rs 10000/- to each complainant as compensation for physical harassment and mental agony under section 14(1)(d) of the Act, a litigation cost of Rs 12000/- and the adjournment cost of Rs 2000/- as ordered on 31/01/2018, within 30 days from the date of this order;
That the Opposite Parties are further directed to jointly and severally pay Rs 60000/- under section 14(1)(hb) for unfair trade, 50 percent of which shall be paid to the complainants and the rest to be deposited with this Forum to maintain legal aid account, within 30 days from the date of this order;
That on failure of any of the Opposite Parties to comply with any of the orders within prescribed time of 30 days, the complainants shall have the liberty of putting the orders into execution in terms of section 27 of the Act ibid.
Let copies of the order be handed over to the parties when applied for.
