For the Complainant                       -Smt. Subhra Nag Advocate

For the OP 1 & OP 2           - Miss Punam Chowdhury, Advocate

FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

This is an application u/s.12 of the C.P. Act, 1986.

The fact of the case in brief is that the Complainant Sri Asesh Kumar Mukherjee  booked  03 seats on 02.02.2018 for Spanish Fiesta tour conducted by the OPs for Rs.1,57,790/- + 5% GST for each person by paying Rs.75,000/- through cheque. The due date of departure was 22.05.2018. Money receipt thereof was issued by the OPs wherein cost of Visa processing / Consulate fees was included in the tour cost. Thereafter, the tour was rescheduled from 22.05.2018 to 29.05.2018 due to some reasons. The OP vide e-mail dated 10.05.2018 informed the complainant that Schengen Biometric has been scheduled on 14.05.2018 at BLS Office,Kolkata, which is just 15 days before the due date of departure. The complainant along with his wife and brother Sri Goutam Mukhopadhyay alias Mukherjee reached the BLS office on 14^th May,2018 for the biometric test for Visa. But there was no such appointment with the office for which the complainant, his wife  and brother  were harassed a lot  and the biometric test was  however completed in the late evening on the same day.  They also paid Rs.25,500/- (Rs.8,500/- X 3)  to one Sri Biplab Roy of the OPs  and handed over all original documents including the Passports under compelling circumstances. Sri Biplab Roy assured them that the necessary formalities would be taken care of by them. Thereafter, OPs intimated the complainant that their Passports, Insurance copies, return tickets, Visas etc. would be handed over at Netaji Subhas Ch. Bose International Air Port on 29^th May,2018, the date of departure of their journey. On 29^th May, 2018 complainant, his wife and brother came to the Airport from Durgapur and met the OPs. One representative of the OPs handed over their Passports, Insurances, return tickets and Visas etc. except the visa for his younger brother, Sri Goutam Kumar Mukhopadhyay alias Mukherjee. The complainant and his wife were forced to travel without his brother. After coming back, the complainant vide legal notice dated 29.08.2018 demanded refund of the tour cost of Rs.1,78,015/-, for cancellation of the tour of his brother with penal interest from  29.05.2018 to till the date of payment. Thereafter, the OPs transferred Rs.57,000/- to the A/c of the complainant being the refund payable as per their consideration.  Being aggrieved with the action of the OPs, the complainant has filed the instant case to this Forum.

The OPs have contested the case by filing Written Version contending inter alia that this Forum has got no jurisdiction to try and entertain the present complaint as the parties have by contract conferred exclusive jurisdiction upon the Courts at Mumbai. On this ground alone, the present complaint deserves to be dismissed at threshold. The OPs have denied all the allegations leveled against them and submitted that the complainant was given the terms & conditions of the tour along with other relevant information at the stage of booking and accepted the terms and conditions by signing the relevant documents. They have stated in their submission that since the minimum  number of participants could not arrive at, the departure date of the tour was rescheduled from 22.05.2018 to 29.05.2018 which they can do as per the terms & conditions of the subject tour. As per the terms & conditions, the entire tour cost was required to be paid 40 days prior to the date of departure whereas the complainants have paid the total cost few days prior to the date of departure which is clearly a breach of contractual obligation.  Regarding Visa, the OPs acts as a mediator between the intending  travellers and the respective Embassy. The Embassy confirmed the appointment date on 14.05.2018 which was duly communicated to the complainant. The Embassy rejected the Visa of Mr. Goutam Mukherjee where the OPs had no role to play in. It was a ‘no show’ and 100% cancellation charge was applicable as per the booking terms & conditions.  It is submitted that though the cancellation of trip due to rejection of visa attracts 100% cancellation charges, as per the terms and conditions, the OPs on good faith refunded a sum of Rs.57000/- which was duly accepted by the Complainant.

On the pleading of the parties the following points have necessarily come up for determination.

1. Whether the Forum has got the territorial jurisdiction to entertain the complaint petition .
2. Whether there is any negligence and  deficiency of service on the part of the  OPs.
3. Whether the Complainant is entitled for the relief as prayed for.

Decision with Reasons

Point Nos. 1 to 3 :-

All the points are taken up together for the sake of convenience and brevity in discussion.

Both parties have tendered their Evidence on Affidavit, Reply of the complainant  to the questionnaire set forth by the OPs. BNA of both parties are placed on record. We have travelled over all those documents.

Facts remain that  the Complainant had booked the Spanish Fiesta tour with the OPs on 02.02.2018 for self, wife and his younger brother  Sri Goutam Mukhopadhyay alias Mukherjee where the date of journey was on 22.05.2018. OPs thereafter rescheduled the date of journey to 29^th May,2918 for some reasons.  The complainant paid the total tour cost before the date of journey.  Up to this stage there is no dispute in between the parties. On the date of journey when the complainant along with his wife and younger brother reached to the Airport, Kolkata on 29.05.2018 at 08.00 AM came to know that the Visa of his younger brother Sri Goutam Mukhopadhyay alias Mukherjee has been rejected by the Embassy. This is a shocking news to the complainant  and the other members when they were very much prepared mentally for enjoying the trip .  Under the compelling circumstances the complainant had no other option but to fly with his wife only leaving his younger brother at the Airport, Kolkata.  The tour was booked on 02.02.2018. The complainant got the message from the OPs on 10.05.2018 at  09.57 PM that their Schengen Biometric test has been scheduled  on 14.05.2018 at 13.00 Hrs  at BLS International Service Limited, 25/A Shakespeare Sarani, Kolkata – 700017 where the rescheduled date of journey was  29.05.2018. From the above, it appears that for processing the Visa, the time left was only 15 days. Though the OPs have tried to escape from the liability of arranging the Visa by citing the terms & conditions of the tour where they have projected themselves as a mere mediator. Granting or rejecting of Visa by the Embassy is none of their business while they are accepting the important responsibility of getting it done by them at the initial stage of booking the tour. While travelling the documents placed  on record by the OPs it is no where found any document where from it could be established  the date of processing of Visas of the complainant by the OPs.. The Ld. Advocate of the complainant has cited one judgment of Hon’ble SCDRC, Kolkata in respect of First Appeal No. A/1062/2016 (Arising out of order dated 23.09.2016 in Case No. CC/467/2013 of DCDRF, Kolkata – I ( North), Tapas Kumar Bhattacharyya – Vs – Cocks & Kings Ltd.).

From the recitation of the said judgment it is observed that as per Visa Guidance Services it is the responsibility of a consumer to furnish all documents required for application for Visa etc at least 60 days before the departure date but here the OPs have asked for the documents to be produced on 14.05.2018 at the respective Embassy which is only 15 days prior to the schedule departure date on 29.05.2018.The Forum could not understand the reason behind the same.  The most surprising part of the episode is that the complainant has been informed about the rejection of Visa of his brother just on the eve of flying for the tour on 29.05.2018 when nothing was left to be done by the complainant in this regard. It was incumbent upon the OPs  to obtain consent of the complainant whether he was eager to conduct the said tour without his brother.,This is a sheer negligence  on the part of the OPs and a clear case of deficiency of service . By getting signature on some papers containing the terms & conditions of tour which is not legible enough to read out and understand, the OP cannot avoid the responsibility of arranging  Visa of their esteemed customers specially when they are very much aware of the rules and regulation of the same. Processing of Visa as such, should have been started much before the scheduled date of departure so that the probable relevant shortcomings, if any, could have been sorted out well within the time. Here, the OPs have not paid proper attention to the said fact rather has shown their whimsical and indifferent attitude towards the said most vital job of arranging visas for  the complainant and his family who all are senior citizens and were solely dependent on them in the said matter.  The painstaking truth of rejection of Visa of Sri Goutam Mukhopadhyay alias Mukherjee, the younger brother of the complainant is made known to them only on the very moment of leaving for the tour on 29.05.2018. As such, we are of the considered view that there is  negligence and deficiency of service on the part of the OPs in the instant case.

Now, the question regarding territorial jurisdiction of the Consumer Forum, it is worthwhile to mention the First Appeal No. 425 of 2010 in the NCDRC, New Delhi where it is clearly stated that it would defeat the very purpose and object of the Consumer Protection Act, 1986, if the provisions of an agreement between a consumer and a service provider alone were to determine the jurisdiction of the Consumer forum. The submission of the OPs in this respect as such does not help.

All the points under determinations are disposed of..

In the result the complaint succeeds in part.

Hence,

                                   ORDERED

That the Complaint Case be and the same is allowed on contest in part  against the OPs with the following directions.

1)         The OPs are directed to pay Rs.1,78,015/- ( One lakh seventy eight thousand and fifteen only )  to the Complainant against  the tour cost of his brother Sri Goutam Mukhopadhyay alias Mukherjee less Rs.57,000/- being the amount already reimbursed.

2)         The OPs are further directed to pay Rs.25,000/- (Rupees Twenty-five  thousand) only to the complainant as compensation for causing harassment, mental pain and agony with litigation cost of Rs.10,000/- within a period of 45 days from the date of this order.

 Liberty be given to the complainants to put the order in execution if the OPs transgress to comply the order.