Order No. 18 dt. 30/08/2017
The case of the complainant in brief is that the complainant sometimes in the month of June 2013 along with one of her friend Ms. Triparna Sinha, decided to go on a holiday package tour in United Kingdom and several other schengen countries in Europe. The complainant contacted the o.p. and on behalf of the said company Manager i.e. Ms. Haimashree Mukherjee, made all sorts of conversation with the complainant. As per the direction of said manager the complainant paid an amount of Rs.43,800/- in cash for blocking seats in respect of the said tour. Thereafter the complainant booked the Europe tour for herself and her friend by paying Rs.1,11,784/- each totaling of Rs.2,23,568/- and o.p. issued the receipt after receiving the said amount. The complainant as per the advice of o.p. no.1 applied for UK visa on 19.6.13. The entire process for submission of visa application was carried out by o.p. The complainant was informed by the manager of o.p. that under any circumstances UK visa is delayed or not obtained within time they positively pull out the passport of the complainant and other documents including schengen visa from the concerned department, so that the complainant can avail the Europe tour by expunging UK and/or London. The complainant was waiting for her UK visa, but since the UK visa was not obtained till 4.7.13 for which the complainant and her friend wrote an application before the Visa Officer, British High Commission, New Delhi for release of passport and considered the visa application at the earliest. As per the tour schedule which was mentioned as Cosmos Tour, the tour to Europe and UK was supposed to be starting from 8.7.13 and the complainant had to leave Kolkata latest by 7.7.13, in spite of best effort of the complainant UK visa did not reach the complainant and were not able to pull out the passport and other relevant documents from British High Commission.
The complainant all on a sudden received an e-mail from o.p. no.1 informing for the first time that in case of cancellation of tour on that day a cancellation charge of 50% of total cost per person will be levied in case of cancellation of Cosmos Tour. It was further stated that the complainant never cancelled any tour and she was advised to choose any alternative Europe tour to avoid any cancellation charge. The complainant thereafter had to opt for the European extravaganza tour conducted by proforma o.p. The complainant and her friend already paid Rs.5 lakhs for which they had to accept the 2nd tour. From the invoice of the 2nd tour it will appear that some amount were deducted from the package tariff on account of visa deduction and other expenses. Because of such deduction the complainant filed this case praying for direction upon the o.p. for refund of the said amount as well as for compensation and litigation cost.
The o.p. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that Ms. Haimashree Mukherjee, Sales Manager Specialist had received an enquiry from the proforma o.p. on 4.6.13 regarding the complainant’s interest in Cosmos Tour. They preferred the date of journey being 7.7.13. The o.p. through Ms. Haimashree Mukherjee had duly reverted to all queris purporting to the proposed tour through proforma o.p. The proforma o.p. had given the impression to the complainant that they are acting on behalf of o.p. It was further stated that before the tour programme was confirmed it was duly intimated to the complainant through proforma o.p. that since only around a month remained from the date to travel it may be difficult to obtain UK visa at such short notice and proforma o.p. had informed the o.p. that the said fact was communicated to the complainant. In fact it was also suggested by o.p. that to opt for tour package sans London UK as schengen visa for Europe are obtained at a much shorter than notice than UK visa. The complainant insisted to visit London and to include the same in the tour programme. The role of o.p. was only restricted to receive adequate documents along with duly filled up visa application from the complainant and thereafter submitting the same to the concerned consulate. The complainant was informed by o.p. an expressed its reservation regarding the UK travel in such short notice. But the complainant in spite of such reservation included the travel to London within the tour programme. The o.p. had no other alternative but to finalize the tour package. The o.p. denied that the complainant was never given such assurance that they will make all sorts of arrangements for availing visa. The complainant was informed that application would be made for UK visa as per the slots of biomatrics available at the time of applying to which the complainant had agreed. The proforma o.p. made all sorts of arrangements for providing the facilities to the complainant, but due to some inconvenience on the part of the complainant the next available date was fixed and accordingly, the visa application was made on 19.6.13. Because of short period UK visa was not provided. In the mean time the complainant wanted to pull out passport whereby it was submitted for grant of visa. Such assurance was never given by o.p. The complainant could have undertaken the tour on 8.7.13 the UK visa was made available. However, the complainant was not ready to miss even one day of the tour as per the cancellation policy, the cancellation of the trip of the complainant was falling under 100% cancellation charge category. But o.p. had agreed to reduce the same to 50% of the tour package amount as cancellation. In view of such fact there was no deficiency in service on the part of o.p. and accordingly the case is to be dismissed.
The proforma o.p. contested this case by filing w/v and stated that proforma o.p. helped the complainant to avail the conducted tour organized by o.p. The proforma o.p. helped the complainant by acting a liaison between the complainant and o.p. in connection with the Europe tour. There is no relationship as consumer and service provider between the complainant and proforma o.p. as no consideration has received from the complainant by proforma o.p. The complainant is a consumer of o.p. no. 1 and there was serious deficiency against them only and o.p. is liable for the said deficiency. The o.p. also categorically committed deficiency before the complainant as well as proforma o.p. that in case of failure to obtain the complainant’s UK visa in time, o.p. would take out the passport of the complainant from the concerned embassy, so that the complainant can avail the Europe tour excluding UK, but o.p. failed to apply such committed. The proforma o.p. also stated that the fault committed by o.p. and moreover, deducted the cancellation charges from the complainant and thereby o.p. is liable to pay the said amount which was deducted from the complainant. In view of the said fact proforma o.p. prayed for dismissal of the case against proforma o.p.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant entered into a contract with o.p. for visiting European countries including UK?
- Whether the complainant paid the total amount as claimed by o.p.?
- Whether o.p. failed to provide UK visa in time for which the cancellation of tour was made in respect of visiting UK and other places?
- Whether there was any deficiency in service on the part of o.ps.?
- 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 complainant argued that in order to avail the tour programme conducted by o.p. the complainant paid the amount as sought for by o.p. Initially the complainant paid Rs.2,67,368/- and from time to time the complainant paid further amount. The complainant all through made contact with o.p. and as per the advice of executive of o.p. provided all sorts of documents for obtaining visa. When the complainant noticed that UK visa was being delayed as per the advice of o.p. they applied for pulling out the passport of the complainant and her friend and schengen visa from the concerned department, so that they can at least avail the tour of schengen countries expunging the trip to UK. Since the tour programme was scheduled to begin from 8.7.13 the complainant and her friend required to leave Kolkata latest by 7.7.13, but in spite of repeated assurance neither UK visa was obtained nor passport and schengen visa pulled out till such time. Surprisingly on 8.7.13 o.p. in formed the complainant that o.p. cancelled the tour programme on that day and there will be cancellation of 50% of total tour cost. The complainant was never informed of such cancellation charges. The complainant finding no other alternative accepted the proposal of o.p. and opted for alternate tour to avoid any cancellation charges. The amount deducted by o.p. was in illegal manner for which the complainant filed this case praying for direction upon the o.p. for refund of the deducted amount and other reliefs.
Ld. lawyer for the o.p. argued that as per the terms and conditions of the tour programme it is the duty of o.p. to receive adequate documents along with duly filled up visa application from the complainant and thereafter helping the client / complainant for submitting the same to the concerned consulate. Granting or non granting of visa is the sole prerogative of the concerned consulate where such application has been made. The complainant has suppressed the fact that inconformity with the offer and acceptance o.p. also booked the air ticket for the complainant as well as hotels for availing the Cosmos Tour. UK Consulate rejected the visa of the complainant and due to cancellation of visa the o.p. suffered loss. As per the agreement it was specifically stated that cancellation due to visa rejection in the terms and conditions of the said company it is the responsibility of the client to get the visa done and the company shall not be liable if it is rejected by the concerned authorities and as per the terms and conditions of the said agreement since the cancellation was made just only one day prior to the date of departure for which o.p. could have deducted 100% charge received from the complainant, but they refunded 50% of the amount. It was further argued by ld. lawyer for o.p. that the complainant herself requested the UK Consulate for UK visa, however, the visa was not granted. In such situation o.p. was asked by the complainant for cancellation of the tour and though as per the cancellation policy, the cancellation of the trip of the complainant was falling under 100% cancellation charge category, but o.p. had agreed to reduce the same to 50% of the tour package. The complainant upon considering all other tour packages, which were in fact cheaper than the European Extravaganza had selected the same and availed the tour. Since there was no deficiency in service on the part of o.p. the case is to be dismissed.
Ld. lawyer for the proforma o.p. argued that there was no relationship between the complainant and proforma o.p. and no consideration was received by proforma o.p. from the complainant, therefore proforma o.p. cannot be liable for any compensation or cost.
Considering the submissions of the respective parties it is am admitted fact that the complainant made contact with o.p. for availing the tour programme. It is also an admitted fact that as per the direction of o.p. the complainant paid the amount. It was decided that o.p. would conduct the tour for a package tour in UK and several other schengen countries in Europe. It is also a admitted fact that the complainant as per the direction of o.p. applied for visa and other necessary documents. The representative of o.p. gave assurance to the complainant that they will make all sorts of arrangements for availing visa in respect of the complainant and her friend. But it is found from the materials on record that the visa was not provided to the complainant. Subsequently the complainant had no other alternative but to accept the alternative tour programme provided by o.p. It is also an admitted fact that the complainant discharged her liability in payment of the amount to o.p. as and when it was asked for. It is also an admitted fact that the complainant long before the date of journey made contact with o.p. and provided all sorts of documents for availing the visa that was assured by o.p. to be arranged for them. But it is unfortunate that the visa was not available. Due to such non availability of the visa the tour programme had to be cancelled for which the complainant had no role to play. It is curious enough that o.p. deducted 50% of the total amount of tour cost paid by the complainant. Since the complainant suffered due to huge deduction of the amount by o.p. and suffering made by the complainant was due to the false promise given by o.p. that they will make all sorts of arrangement for obtaining visa from the consulate for visiting UK and in such manner o.p. obtained the total amount from the complainant and subsequently deducted 50% from the said amount which clearly established the fact that there was deficiency in service on the part of o.p. rather we should say that there was unfair trade practice on the behalf 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.693/2013 is allowed on contest with cost against the o.p. and dismissed on contest without cost against the proforma o.p. The o.p. is directed to refund the amount of Rs.2,67,368/- (Rupees two lakhs sixty seven thousand three hundred sixty eight) 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.
