Date of Filing:22/01/2018

Date of Order:21/05/2019

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated:21^st day of MAY 2019

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.130/2018

Vs

ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This Complaint is filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service and to refund Rs.76,300/- together with interest at 24% per annum on booking of Rs.1,20,000/-, and for Rs.2,00,000/- towards damages and Rs.10,000/- towards litigation expenses and to pass such other relief as this Hon’ble Forum deems fit. 

2.     The brief facts of the complaint are: that, OPs are service provider and tour organizers. Complainant booked a tour package with OP under the name EUROPEAN SPLENDER package tour for 10 days to take place in the month of May 2017 covering 6 European Countries, i.e. Italy, France, Germany, Austria and Vatican City for himself and for his wife and the tour was to start from 18.05.2017 from India and to terminate in India only.

3.     It is contended that the complainant’s son was travelling separately on business trip to Belgium, which was to be followed with holiday trip to the European Countries.  Complainant requested OP to accept his booking on direct joining basis and informed that he would bear the cost  of air travel from India to Europe and Europe to India and wished to join the trip on 18.05.2017 at Rome when the European tour was supposed to  start and to  end on 27.05.2017. OP NO.2 informed and negotiated regarding the cost and it was fixed at Rs.1,09,128/- per person and also undertook to provide service for VISA to Belgium to the complainants on additional fee. 

4.     It is contended that the OP agreed to provide  the tour package for a sum of Rs.2,18,256/- for two persons i.e.(Rs.1,09,128 X 2) and the said cost consists of Rs.1,09,978/-for cost per person, Rs.3,000/- discount, Rs.4,000/- Surcharge, Rs.1,500/- additional for VISA on reduction,  and Rs.3,350/- for HE kit. He affixed his signature to the booking form  and made a payment of  Rs.1,20,000/- through net banking on 08.04.2017.  OP No.2 was to collect the documents from him for applying VISA. There was a delay of 11 days by OP to collect the same. OP.No.2 was suppose to apply for their appointment for biometric documentation to the VFS on behalf of Belgium consulate. After repeated request and follow up OP No.2 informed that biometric documentation was fixed on 03.05.2017 and VISA application was also got signed. He (the complainant) appeared for the biometric documentation on the schedule date and time. At 11 am on 05.05.2017   he got a call from Belgium consulate Mumbai informing that his VISA application has been rejected for the reason based on the travel programme given in the VISA application form. He had to apply for Italian VISA and not for Belgium and also informed that his passport has been returned to VFS Bengaluru and the same was collected by him on 08.05.2017. 

5.     It is further contended that, he enquired with Italian desk for processing the VISA for Italy and requested them to process the same within a week as his flight was on 16.05.2017 to Brussels in Belgium through Delhi. They informed that after getting appointment for biometric, it would take 10 to 15 days to get Italian VISA and that to get a VISA in a short time is not possible and hence he was not in a position to join the European Splendor tour on 08.05.2017.

6.     It is contended that, in view of the same he requested OP .No.2 to arrange for booking for the tour on a future date as per the terms and conditions of the booking form.

7.     It is contended that in the booking form, it has been mentioned that due to rejection of VISA or non processing of VISA application due to any circumstances if the tour participant is unable to travel on tour originally booked he/she shall option to postpone the tour to another available date or change to any other tour by paying transfer charges and as per the annexure it is Rs.10,000/- per person. He sent an email dated 08.05.2017 for transfer from one tour to another.  The same was confirmed through email by OP.No.2 on 11.05.2017 informing that cancellation charges is applicable as the departure date is less than 10 days for which, he wrote a letter through email on 12.05.2017 contending that cancellation charges is not applicable in case OP has accepted his booking even though the date of departure is less than 45 days and OP had agreed to get VISA for him for payment of additional fee  and Op has received documents without pointing any discrepancies in the documents and that he has not placed any request for cancellation from his end, whereas requested for transfer from one tour to another and that he is liable to be charged  only Rs.10,000/-per person.

8.     OP being a well reputed, well experienced travel organizing company ought to have instructed him to file the application for VISA properly. 

9.     Ultimately OP.No.2 informed over email on 26.06.2017 that he has to pay Rs.42,000/- per person for shifting the tour to 27.07.2017.  Again he informed the OP that cancellation clause is not applicable as there is no request for cancellation and that he is only liable to pay for Rs.10,000/-  per person for transfer charges and in the alternative requested for refund of  Rs.1,20,000/- paid by him. OP.No.1 informed over email that the cancellation charges of Rs.35,000/- and GST has to be paid, for which he did not agree.  The fixing of Rs.35,000/- and GST is unilateral and no service has been rendered by OP and hence OP is not entitle for GST and cancellation charges. Ultimately OP has refunded Rs.43,700/- only on 30.10.2017 which amounts to serious irregularity, deficiency in service on the part of OPs. The cause for the complaint arose when he booked for the tour package at Bengaluru since OP.No.2 is having office in Bengaluru and also all the communications, payments were made in Bengaluru.

10.   It is further contended that, in view of the extra ordinary situation of rejection of his VISA, the cost of the flight tickets booked with LUFTHANSA airlines has been completely returned without deducting any charges as they would normally deduct. Hence the same principles be applied in this complaint against OPs and pray the forum to allow the complaint.

11.   Upon the service of notice, OP.No.1 and 2 appeared before the forum and filed detailed version. It is contended that complaint is bad in law and material facts have been suppressed. Court at Mumbai alone has jurisdiction to dispose this complaint as per the terms and conditions of the booking accepted by the complainant. It has admitted that  it is a company providing services and also arranging package tours and has given vide advertisements and tour brochures for the benefit of the customer who like to book for the tour and for intending travellers. They are free to compare the products with other competitors.

12.   It is admitted that the complainant voluntarily opted and booked for European Splender tour commencing on 18.05.2017 and also intimated that he will join the tour group directly at Rome on 18.05.2017 and requested them to make tour booking accordingly. They have denied having undertaken to process the complainant’s application for VISA for Belgium.  It is well known that, any person who wants to go abroad should have a valid VISA, and it is the responsibility of the person who proceeds to visit the foreign country to get the same. OP’s responsibility is limited to provide basic assistants in preparing the VISA application and accordingly provided basis assistance to the complainant and tour cost for Rs.1,09,128/- per person which the complainant accepted.  He only paid Rs.60,000/- per person i.e. Rs.1,20,000/- for two persons though he was to pay the full amount which  is non refundable and interest free. On receipt of the said amount, OP proceeded for booking the schedule tour.  By signing the booking form, the complainant has agreed for the terms and conditions laid down. The clause regarding forfeiture of the booking amount is that the company shall be within its rights to forfeit the non refundable interest free booking amount paid by the tour participants along with completed booking form for confirmation of seat on the booked tour and also to recover cancellation charges in the event the tour participants cancel the booking.

13.   It is further contended that, complainant ought to have paid the full cost of the tour 45 days prior to the departure including the foreign exchange component. The complainant has failed to do so.   However as a gesture of goodwill, inspite of not paying entire tour amount, OP went ahead and processed the booking service. It is the complainant who breached the payment terms.  It has also denied that there is delay on his part in collecting documents which resulted delay in processing the VISA.  Complainant’s son Amit Narayan was informed over email on 07.04.2017 that all the required documents are to be submitted 10.04.2017.

14.   It is further contended that as per article 5 Schengen Visa code,  application must be lodged for Schengen VISA at the consulate of the country that one intended to visit, or if intend to visit more than one Schengen state the consulate of the country of primary destination (i.e main purpose of stay or longest stay).  If you intend to visit several Schengen state and the stays will be of equal length, you must apply to the consulate of the country whose external borders you will cross first when entering the Schengen area. The son of the complainant informed that complainant was to reach Belgium on 17.05.2017 and join the said SOTC Tour on 18.05.2017 and hence OP assisted to forward the complainant application for VISA to the Belgium Embassy through which the complainant enter the Schengen area.

15.   It is further contended that as per the terms of the booking, it was the sole responsibility of the complainant to apply for the VISA to the concerned embassy.  OPs merely agreeing to assist the complainant to forward the VISA application to Belgium embassy in this case and has no role to play regarding issuing of the VISA.  It is also not responsible for rejection of the VISA.  It has nothing to do with the procedure adopted and time taken in granting by Italian Embassy.  It is further contended that:

“All Tour Participants should hold valid travel documents viz. Passport and visas for travel. It will be the Tour Participant’s responsibility to apply for visa with complete set of documents required by the embassy/consulate within the stipulated period as advised by the company. In the event the visa application made by Tour Participant or by the Company on his/her behalf is rejected by the consulate due to either inadequate supporting documents or for whatever reason or where the visa could not be processed due to late submission or application by the Tour Participant the company shall not be liable for the eventuality and lead to forfeiture of booking amount paid and no claim whatsoever shall be entertained for the same. All cost, charges in reference of the said visa application shall be borne by the Tour Participant. Visa fees are non-refundable under any circumstances whatsoever.”

16.   It is further contended that, the complainant approached OPs for postponement of the tour in a future date and the same was accepted subject to the terms and conditions. As per the same, transfer to one tour to another tour amounts to cancellation of that tour and levy of applicable cancellation charges of that tour and a fresh booking is made on a new tour a sum of Rs.10,000/- as transfer fee to be paid.  The complainant has mislead this forum by mixing up the transfer fee and the cancellation charges.

17.   The cancellation charges to be levied under the cancellation slab.  They informed the complainant that the applicable cancellation charges is Rs.35,000/- + GST per person for which the complainant refused to accept. The amount paid by the complainant i.e. Rs.1,20,000/- at the time of booking is non refundable and no interest payable on it. As the departure date was less than 10 days, cancellation charge was made applicable and it is as per the terms of the booking:

“As we book services in advance and are bound to honour the payment commitments to service providers, cancellation of services earmarked for a particular departure results in the Company losing money depending upon the time of communication of cancellation to the supplier. Therefore any cancellation of tour booking by Tour Participant will attract cancellation charges as specified by the Company.

In the event of the Tour Participant cancelling a third party tour/services booked through the Company, the terms and conditions of such other Tour Operator, including their payment schedule, cancellation, refund and the like shall be applicable, in addition to company’s cancellation rules.”

18.   In view of this, and after much correspondences by applying the cancellation charges and the applicable GST and as a goodwill gesture towards customer Centric Organization, they refunded Rs.43,700/- after deducting the above amount to the complainant which the complainant accepted without any demur.

19.   There is no deficiency inservice on their part and no prima facie case made out by the complainant and no documents produced to substantiate the claim and there is no unfair trade practice and the complaint filed is only to harass and cause mental agony to them and a deliberate attempt to make wrongful gain and hence prayed the forum to dismiss the complaint.

20.      In order to substantiate the case, both the parties filed their affidavit evidence and documents. Heard the arguments. The following points arise for our consideration:-

                (1)   Whether the complainant has proved the

                         deficiency in service on the part of the O.Ps?

(2)  Whether the complainant is entitled to the relief

      prayed for in the complaint?

21.   Our answers to the above points are:-

POINT 1: In the Affirmative.

POINT 1: Partly in the Affirmative.

                      for the following:

REASONS.

POINT No.1:-

22.   The complaint, version, documents produced and the oral evidence of the parties, when perused it becomes clear that Op is a tour organizer and the complainant sought their services to arrange for the tour named as EUROPEAN splender. It is not in dispute that, the complainant paid Rs.1,20,000/- through net banking on 08.04.2017.

23.   It is also admitted by OPs that, they have refunded Rs.43,700/- after levying the applicable cancellation charges of Rs.35,000/- plus GST. It is also admitted by the complainant.

24.   The case of the complainant is specific that since he could not get the travel VISA for the said tour, he requested OPs to transfer the said tour itinerary to some other date for which Ops charged Rs.42,000/- as shifting charges whereas, he has not requested for cancellation of the tour whereas he requested for only transfer/ shift, for which as per the policy of the OPs, only Rs.10,000/- could be deducted.

25.   OP has produced how to book your holiday catalogue wherein it is mentioned under transfer one tour to another.   Transfer from one tour to another 45 days prior to the departure, will be treated as cancellation on that tour and fresh booking on another.  In these cases, transfer fee of Rs.10,000/-  per person will apply. Under the head CANCELLATION :

“As we book services in advance and are bound to honour the payment commitments to service providers, cancellation of services earmarked for a particular departure results in the Company losing money depending upon the time of communication of cancellation to the supplier. Therefore any cancellation of tour booking by Tour Participant will attract cancellation charges as specified by the Company.

In the event of the Tour Participant cancelling a third party tour/services booked through the Company, the terms and conditions of such other Tour Operator, including their payment schedule, cancellation, refund and the like shall be applicable, in addition to company’s cancellation rules.”

26.   In this case, the tour has to be cancelled in a short span. The complainant has requested for transfer of the booking on another tour, whereas OPs have treated it as a cancellation and have deducted Rs.42,000/- out of the amount he has paid which according to us is unfair trade practice, since OPs have already deducted Rs.35,000/- + GST towards cancellation charges. When such being the case, deduction of Rs.42,000/- would be unfair. In this case as per the version, the complainant was offered a tour to be departed on 27.07.2017 after levying the applicable cancellation charge of Rs.35,000/- + GST.

27.   However the complainant did not intimate his willingness for the said tour and sent an email on 10.07.2017 requesting to refund the entire amount of Rs.1,20,000/-.  In this case, since the departure date was less than 10 days, the OP have levied the cancellation charges i.e. Rs.35,000/- + GST and  returned Rs.43,700/- by deducting the cancellation charges.  The cancellation of the tour on account of non-granting of the VISA by the consulateis entirely due to the act of the complainant and OP cannot be held responsible.  OPs have not given any account in respect of the remaining amount. Even considering that the GST would be around another Rs.5,000/-, making it finally to Rs.40,000/-, Ops are bound to repay the remaining amount i.e. 1,20,000/- - Rs.83,700/- which amounts to Rs.36,300/- and hence retaining the said amount  amounts to unfair trade practice and unethical which made the complainant approach this Forum by filing this complainant by spending money, time and energy and by paying the profession fee to his advocate and also undergone mental agony, strain and harassment for which we quantify the same at Rs.10,000/- and Rs.5,000/- respectively and hence we answer Point No.1 in the affirmative and answer Point No.2 partly in the affirmative.

28.   The OPs have taken the contention that Mumbai court has alone jurisdiction to try the complainant and forum at Bangalore has no jurisdiction to decide the case. Inspite of the condition mentioned the parties cannot fix their jurisdiction much against to the general law i.e. the Civil Procedure Code and under Consumer Protection Act. Since the said Code and the Act provides jurisdiction to initiate suit or complaint where the defendants/OPs resides and part of cause of action has taken place. In this case the complainant has paid all the money and booked the ticket near i.e. Bangalore and hence the Forum at Bangalore has jurisdiction to entertain and decide the complaint and hence the contention that Mumbai Court/Forum alone the jurisdiction to try and decide the complainant cannot be accepted. Hence we pass the following:-

ORDER

1. The complaint is allowed in part with cost.
2. The OP No.1 and 2 are jointly and severally hereby directed to pay a sum of Rs.36,300/-  to the complainant along with interest at 12% per annum from 10.07.2017 i.e the day on which the complainant requested OP to refund the full amount   till the date of payment.
3. Further OP No.1 and 2 are hereby directed to pay a sum of Rs.10,000/- towards damages and Rs.5,000/- towards cost of the litigation expenses.
4. The O.Ps are hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 21^st MAY 2019)

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of how to book your holiday brochure.

Ex P2: Copy of the Booking terms and conditions.

Ex P3: Copy of the passport of Satya Anugrah Narain.

Ex P4: Copy of the Passport of Meenu Narain.

Ex P5: Copy of the Bank Statement.

Ex P6: Copy of the Air tickets.

Ex P7: Copies of email correspondences.

Ex P8: Copies of email correspondences.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

Rw-1: GABRIEL SANTOSH RAJARATHNAM, Senior Manager of OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex.R1: Copy of the Authorization Letter.

Ex R2: Copy of the booking form,

Ex R3: Copy of the Terms and conditions.

Ex R4: Copy of the blank booking form.

MEMBER                        PRESIDENT

A*