Tamil Nadu
South Chennai
CC/78/2015
Antony Michael Sevaraj, S/o.Dasan - Complainant(s)
Versus
M/s.Cox and Kings Ltd., - Opp.Party(s)
K.Rajasekaran
18 May 2022
ORDER
Date of Complaint Filed : 09.02.2015
Date of Reservation : 28.04.2022
Date of Order : 18.05.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
CHENNAI (SOUTH), CHENNAI-3.
PRESENT: TMT. B JIJAA, M.L., : PRESIDENT
THIRU. T.R. SIVAKUMHAR, B.A., B.L., : MEMBER I
THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II
CONSUMER COMPLAINT No.78/2015
WEDNESDAY, THE 18th DAY OF MAY 2022
1.Antony Michael Selvaraj
S/o Dasan Nadar
Apartment 16, Building 45,
The Gardens,
Jebel Ali, Dubai, UAE.
2.Anna Selvi,
W/o Antony Michael Selvaraj
3.Stefy Selvaraj
D/o Antony Michael Selvaraj
Represented by her mother &
Natural guardian Tmt.Anna Selvi
4.Sandra Michael,
D/o Antony Michael Selvaraj
Represented by her mother &
Natural guardian Tmt. Anna Selvi
Complainants 2 to 4 are residing at
No.17E, South Mutharamman Koil Street,
Palayamkottai, Tirunelveli-2. … Complainants
..Versus..
1.M/s. Cox & Kings Ltd.
Karuna Corner,
No.10, Spur Tank Road,
Chetpet, Chennai.
Represented by its Manager.
2.M/s Cox & Kings Ltd.
Registered Office
Turner Morrison Building
16, Bank Street,
Fort, Mumbai- 400 001. ... Opposite Parties
******
Counsel for the Complainants : M/s. K. Rajasekaran
Counsel for the Opposite Parties : M/s. C.S. Kiran
On perusal of records and after having heard the oral arguments of the Counsel for Complainant we delivered the following:
ORDER
Pronounced by the President Tmt. B. Jijaa, M.L.,
1. The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties jointly and severally to pay a sum of Rs.5,00,000/- towards compensation and to pay the cost of this complaint.
2. The facts of the complaint filed by the Complainant in brief are as follows:-
The case of the Complainants are that the 1st Complainant is working as Construction Manager in a private company in Dubai, UAE, the 2nd, 3rd and 4th Complainants are his wife and two daughters, respectively. The entire family of the 1st Complainant was residing in Dubai, UAE for a decade and thereafter, for educating their children in Reputed schools in Tirunelveli, they came and admitted the 3rd & 4th Complainant at reputed schools in Tirunelveli, their native place, wherein the Complainants 3 & 4 are undergoing their Higher Secondary courses. The 2nd Complainant is taking care of them and the 1st Complainant continues to reside in Dubai. The Complainant 3 & 4 requested their parents to take them for an European Tour during their school vacation. The 1st Complainant got in touch with the Opposite Parties and enquired about the tour packages for the European Tour. The Opposite Parties had sent a mail dated 27.01.2014, stating that the Attachments sent along with the mail would give a clear picture about the European Discovery Tour which will start in May 2014. The 1st Complainant down loaded the Attachments and from the down loaded attachments, the 1st Complainant found Ref.No.746530 was given to him for the entire future correspondence and the Opposite Parties were delighted to present them a wonderful offer, according to which, on their European Discovery Tour, his wife would pay only 50% of their tour cost. From the attachments that one Mr.Jitto Jos would co-ordinate the Complainant’s plans with regard to the European Discovery tour and further the total price for a person comes to 2,07,608 in INR and a sum of Rs.3000/- should be paid as reservation fee immediately upon booking and another sum of Rs.20,000/- should be paid immediately or within 10 days from the date of the booking. A sum of Rs.17,500/- as documentation amount should also be paid immediately or within 10 days from the booking date along with Visa documents. The 1st Complainant was very much impressed with this offer, as the wife pays only 50% of her tour cost, which means, it is a very good discount and therefore, he jumped at this offer and accordingly paid the initial amount within the time stipulated by the Opposite Parties. The European Discovery Tour is 15 days / 14 nights Tour. Further, the European discovery Tour involves 8 countries viz. 1) United Kingdom 2) The Netherlands; 3) Belgium; 4) France; 5) Switzerland; 6) Liechtenstein; 7) Austria and 8) Italy. It is further mentioned about the cities to be visited in those 8 countries and also the sight-seeing places in those cities. The Opposite Parties made it very clear that the tour will offer an abundance of home cooked Indian meals. Periodic payments were made by the 1st Complainant to the Opposite Parties in both Chennai and Mumbai and on 28.04.2014, the 1st Complainant sent a mail to the Opposite Parties stating that he already paid a total sum of Rs.7,72,000/- and if 50% discount was given as promised, for his wife, then, he had made a excess payment to the Opposite Parties amounting to a sum of Rs.24,525/-. Hence followed with the 1st Opposite Party for getting refund of Rs.24,525/- and requested to return as early as possible whereas the staff of the 1st Opposite Party by name Arasu had sent an email dated 30.04.2014 and he was shocked and surprised to note its contents as they were unable to extend the offer i.e. wife pays 50% as this was the promotional offer for Indian guests and regretted that they would be unable to refund any money and offered him a positive response in this regard. On receipt of the such an irresponsible mail by the Opposite Parties he felt that he was taken for an easy ride and was hoodwinked by the Opposite Parties in trapping him for the European Discovery Tour after making an attractive offer of 50% discount to his wife and later on repudiated the same as it would apply for Indian guest only. Hence the Opposite Parties had cheated and committed criminal breach of trust, as all the four Complainants are Indian citizens holding Indian Passports. Further, the Complainants 2 to 4 are residing in Tirunelveli and in such circumstances, hence terming the Complainants are not Indian guests and are foreigners as contended by the Opposite Parties is to deprive the 2nd Complainant of the offer of 50% discount which was offered as a trap by the Opposite Parties. The 1st Complainant was disgusted and dejected by the flippant reply given by the Opposite Parties in their mail dated 30.04.2014 and therefore, he sent lot of correspondences through E-mails, stating they were duped and trapped by the Opposite Parties, as initially they were not informed that the offer would apply only to Indian wives. Originally the Opposite parties sent a mail offering that attractive offer, but later on, sent a mail stating otherwise. Only after remitting entire amount for the tour package the denial of discount of 50% was made. It was informed to the Opposite Parties that as the Complainants had made all the arrangements, it became unavoidable for him and his family members to cancel the trip and therefore, they were constrained to proceed with the tour and make the final payment as per latest quotation, but under protest. Their grievances and feelings were clearly intimated to the Opposite Parties in the 1st Complainant’s mail dated 09.04.2014.
The Opposite Parties indulged in a very cheap advertisement policy. This itself indicates how the Opposite Parties are guilty of unfair trade practice and how they have taken the complainants for a ride.
As per the tour schedule, it starts on 14.05.2014 by departing from Chennai Airport at 9.45 am and reaching Dubai International Airport at 12.15 pm on the very same day. From Dubai, the flight would start at 2.15 pm for London and it reaches London at 6.40 pm on the very same date i.e. 14.05.2014. the tour concludes on 28.05.2014 by catching the flight in Milan at 2.05 pm and arriving in Dubai International Airport at 10.10 pm on the very same day i.e 28.05.2014. The flight to Chennai from Dubai is at 2.45 am on the next day i.e 29.05.2014 it will reach Chennai at 8.20 am on that day i.e. 29.05.2014. This is the travelling schedule which has been intimated to the Complainants by the Opposite Parties.
The Opposite Parties have not provided all the important travel documents including the tour itinerary, terms and conditions, the list of hotels, etc. and they were all given to the Complainants by the Opposite Parties at the last moment.
First of all, all of them were made to travel from 8 am to 10 pm by bus and the sight-seeing itself was very restricted to 2 to 3 hours per day. Some of the sight-seeing were seen only sitting from the bus and therefore, the Complainants were made to suffer both mentally and physically. To top it all, even for taking dinner and lunch, a hectic travelling was involved.
Secondly, the hotels where the Complainants and others were accommodated are ordinary hotels as against their promise where even the basic amenities were lacking.
Further, two of the very important events promised in the tour package, were not undertaken. They were completely exhausted and dejected by the time they arrived in Chennai immediately, the first Complainant took up the matter with the Opposite Parties by sending a detailed representation through E-mail dated 14.05.2014, to which one Mr.Kimpearl Pinto of Corporate Customer Cell replied by sending a mail containing false statements and also admitting some of their serious lapses. In the response dated 25.06.2014, the above said kimpearl Pinto, justified the long travelling hours as 8 countries were covered in a span of 15 days.
a) The Opposite Parties were promised stay in 4 star hotels however the Complainants and other tourists have stayed only in 3 star hotels except one in CHAMONIX (France). The hotels in LILLE (Belgium) and PARIS (France) were not even worth calling 3 stars.
b) The Tour Manager is highly incapable and inefficient. It seems that he has no experience of managing such a trip.
c) The Hotel in PARIS (France) was very much in the outskirts near the garbage dump. Neither the AC was functional nor any service was available.
d) In CHAMONIX (France), even the 2 tour managers from Cox & Kings were unable to co-ordinate themselves and a mess was created in the small Indian restaurant giving the Complainants an impression as if they were getting free lunch.
e) The Gala Dinner at MT.COX and KINGS was cancelled without any prior notification.
f) On 22.05.2014, the Complainants and other tourists were supposed to go to GLACIER 3000 which was again cancelled without any prior notification due to unavoidable weather conditions.
g) The Complainants were fed up of eating more or less same Menu of Indian Food made mostly in Gujarati style, which is very poor in quality and bland in taste.
While admitting that the visit to Duomo was missed, the Opposite Parties took umbrage under the clause “beyond their control”. However, they are not able to explain as to how it was beyond their control, but, they regretted that the delay in reaching Florence resulted in missing out the visit to Duomo. The Opposite Parties while admitting their liabilities in their letter dated 25.06.2014, tried to wriggle out of the situation by giving lame excuses and weak explanations. While concluding their inadequate explanation dated 25.06.2014, they admitted that the Complainants and other could not visit Glacier-3000 due to bad weather on day-9 of the tour and came forward to refund Euro 130 per adult as goodwill gesture which will come to Rs.44,720/-. From the reply dated 25.06.2014, it is very clear that the European Tour undertaken by the Complainants was a nightmarish experience for them and the Complainants do not deserve such a treatment and experience after paying a hefty sum of money to the Opposite Parties. After receiving this reply dated 25.06.2014 from the Opposite Parties, the 1st Complainant sent a mail to Mr. Kimpearl Pinto as to how the explanation was inadequate and how the reply was improper and also without basis. Thereafter, the 1st Complainant either by himself or through his representatives visited the 1st Opposite Party’s office in Chennai umpteen number of times raising this issue, but the Opposite Parties were adamant and obstinate in coming forward with a viable solution. In such circumstances, the Complainants had no other alternative except to send a lawyer’s notice dated 26.06.2014 to the Opposite Parties. This notice dated 26.06.2014 was received by the Opposite Parties in time and once Sachi Tiwary, Manager-Legal sent a reply dated 02.07.2014 informing that they are conducting a necessary enquiry and after gathering relevant information, they would revert to the 1st Complainant in due course of time. One Arnab Kumar Mahadani, Manager-Legal sent another reply dated 29.07.2014, in which, the previous reply dated 02.07.2014 was also referred to. In the reply dated 29.07.2014, no reference was made to the promised enquiry mentioned in the previous reply nor the Complainants were asked to participate in any enquiry. All that was mentioned in the reply dated 29.07.2014 is that everything was fine and they have done their duties as per the terms and conditions which are absolutely illegal, false, unwarranted and uncalled for.
Hence the Complainants are entitled to be compensated for the harrowing experience they had in the European Discovery Tour due to the unfair trade practice followed and the deficiency in service indulged in by the Opposite Parties. Though it is not possible to exactly quantify the amount of compensation, considering the insurmountable difficulty faced by the Complainants during their tour, they have somehow raised an amount restricting the compensation to a sum of Rs.5,00,000/- only apart from the legal expenses incurred by them in sending the notice, preparing the complaint, filing the same and engaging a lawyer to take care of the same. Hence the complaint.
4. Written Version filed by the Opposite Parties in brief are as follows:-
The Opposite Party states that the complaint is not maintainable in law and liable to be dismissed in limine, for the grounds set out hereunder, which are urged without prejudice to one another and in the alternate;-
a) The Complainants have approached this Hon’ble Commission with unclean hands.
b) The Complainants have indulged in misrepresentation and suppression of material facts.
c) This Hon’ble Commission does not have the jurisdiction to entertain and try the present complaint, as the parties have agreed to refer the matter to arbitration. Further more, the Commission chosen by the parties is District Consumer Disputes Redressal Commission (Mumbai).
d) The Opposite Party No.1 is just a Branch office and is not capable of being sued.
The Complainants have read & understood the Booking Form, How to Book Rule, Pearls of Wisdom and Terms and Conditions (hereinafter referred as “Booking Conditions”). The said Booking Conditions were signed by Complainant No.1 for and on behalf of all the other complainants. The said Booking Conditions thus constitute a legally binding contract between the Complainants and the Opposite Party and which clearly defines the mutual rights, duties and liabilities of the parties. It is further submitted that as per the Booking Conditions, the Parties have by the contract conferred exclusive jurisdiction upon the Courts and Commission at Mumbai and have agreed to refer the dispute to the arbitration. Assuming while denying that the present Commission has the jurisdiction to try and entertain the complaint, the same is not maintainable as the parties have agreed to refer any dispute arising between the parties to the Arbitration. Furthermore, this Hon’ble Commission does not have the territorial jurisdiction to try and entertain the present complaint since the parties have agreed to submit all their claims, disputes relating to the tour before the Courts and Commission at Mumbai. The Complainants have impleaded the branch office of the Opposite Party, which is not a legal entity and incapable of being sued. The Complainants ought to have impleaded only the Registered Office of the Opposite Party situated at Mumbai i.e. Cox & Kings Ltd. Alone, which is a legal entity being a company incorporated under the provisions of Companies Act, 1956, having its Registered Office at Turner Morrison Building, 6, Bank Street, Fort, Mumbai – 400 001. The Complainants approached the Opposite Party to book a tour to Europe. The Complainant No.1 initially inquired with the Opposite Party No.1 about the tours conducted to Europe. Accordingly on 29th January, 2014, a representative of Opposite Party sent the Complainant No.1 the offer namely European discovery Tour with 15 days and 14 nights with 10% cash back offer and the European discovery Tour where wife pays 50% of the tour cost. It is submitted that under 10% cash back offer various departure dates were offered to the Complainants and under the offer wife pays 50% of the tour cost, the departure date disclosed was 2nd May, 2014. The Complainant No.1 did not give confirmation immediately on the offer which he wanted to avail for himself and his family members. It is pertinent to mention here that the Complainants have presented the facts in his complaint which will suit him and did not reveal the events and discussions that took place between Complainant No.1 and the representative of Opposite Party. That on 30th January, 2014, pursuant to the discussion with the Opposite Party, representative of Opposite Party sent another e-mail to the Complainant No.1 again furnishing him details of 10% cash back offer. It was also informed to the Complainant No.1 over phone by the representative of the Opposite Party that the validity of the said 10% cash back offer is extended till 31st January, 2014. A copy of an e-mail dated 30th January, 204 is enclosed. Till 30th January, the Complainant did not give any confirmation on the offer to be availed for himself and his family members. On 31st January, the Complainant No.1 approached the representative of Mumbai Office of the Opposite Party and obtained the pricing and details of the 10% cash back offer. A copy of an e-mail dated 31st January, 2014 written by Opposite Party to Complainant No.1 is enclosed. On the same day, the Complainant No.1 requested his friend Mr.Chandran to deposit a sum of Rs.12,000/- towards booking amount to avail the benefit of 10% cash back offer. Thus, as per instructions received from Complainant No.1, his friend Mr.Chandran signed the Booking Form, How to Book Rule and Terms and Conditions for and on behalf of Complainant Nos. 1 to 4. The departure date mentioned in the said Booking Documents was 9th May, 2014. On the same day, the Complainant No.1 informed the representative of Opposite Party at Mumbai to transfer the amount deposited towards the tour cost, to the Chennai branch. A copy of the said e-mail dated 31.01.2014 is enclosed. It is submitted the Complainants thereafter changed the departure date from 9th May, 2014 to 14th May, 2014. It is evident from the aforesaid facts and circumstances that the Complainants themselves chose to travel on European Discovery tour having 10% cash back offer. The Complainants thereafter after obtaining the visa departed as per the schedule and enjoyed all the services on the tour. As promised in the Itinerary, services were given to the Complainant except Glacier 3000 which was cancelled due to bad weather conditions, which is a Force Majeure situation, over which the Opposite Party do not have any control. Furthermore, the Complainant No.1 and his family enjoyed the European Discovery tour thoroughly without any discomfort. The Opposite Party submits that there was no deficiency of service on their part. Further, the allegations made by the complainants with regard to on tour problem are uncalled for an unwarranted and made against the Opposite Party just to extort money from them. It is submitted that the Opposite Party representative while giving details of “Wife pay 50% of the tour cost” had quoted a reference number and suggested to quote the said reference number while making booking for the said offer. However, the Complainant’s friend who at the instructions of the Complainants made payment of the booking amount at Mumbai office did not quote the said reference number nor expressed any willingness to book the tour under the offer of “Wife pay 50% of the tour cost”. On the contrary, Mr.Chandan, who was authorized by the Complainants, acted upon the details sent on 30th January and 31st January, 2014 which were of 10% cash back offer. Therefore, while making payment of the booking amount at Mumbai, the Complainants were certainly aware that they are booked under 10% cash back offer. Thus, from the above it is clear that the Complainants booked European discovery with 10% cash back offer and not wife pays 50% of the tour cost offer.
The Complainants to avail the said 10% cash back offer made the payment towards the tour cost, the details of which are given hereunder;
Date of Payment | Amount |
31.01.2014 | 12,000 |
26.02.2014 | 1,60,000 |
27.03.2014 | 2,00,000 |
12.04.2014 | 2,00,000 |
12.04.2014 | 2,00,000 |
13.05.2014 | 1,09,064 |
The Opposite Party further states that as per itinerary the Complainants have enjoyed at all the places without any discomfort. It is denied that the Complainants made an excess payment of Rs.24,525/- to the Opposite Party . The Opposite Party states that the representative of the Opposite Party sent an email dated 30th March, 2014, 31st March, 2014 and 1st April, 2014 and explained the payment details of tour availed by the Complainants. The Opposite Party states that final documents was given according to the agreed and accepted Booking conditions. The Complainants breached the Booking conditions by not making the payment as per the payment schedule mentioned in the Booking conditions. As per the Booking Conditions, a passenger has to make full payment of the tour cost 45 days prior to the departure. However, the Complainants made the final payment towards the tour cost only one day prior to the departure. It is submitted that before departure of the tour, the Complainants were furnished with the itinerary i.e detailed tour programmed. However, the Complainants did not protest about the tour programmed before departure. If the Complainants were not happy with the itinerary, they would have cancelled the tour but on the contrary, the Complainants proceeded with the tour programme, which itself shows their willingness to continue with the tour programme furnished to them. The Opposite Party further denies the allegation and averments in this para on the long travelling hours. The services were rendered as promised by the Opposite Party. The Opposite Party takes great care while selecting the accommodation, which is chosen keeping comfort, value for money and convenience for the passengers. The relevant clause appearing in the “Pearls of Wisdom” about the long driving hours is reproduce herein below:
“ There are long drives from one city to another and we provide frequent convenience stops to ensure that you have an opportunity to smoke, stretch your legs, use the rest room facilities. In USA on certain days the journeys are over 8 to 10 hours and in Europe, the average travelling time by coach is approximately 8 to 10 hours or more”.
The Complainants were provided standard category hotels as per the Booking Conditions signed and accepted by the Complainants. The Opposite Party submits that they have not committed any deficiency in providing services to the Complainants and thus the Complainants are not entitled to receive any damages, losses or compensation of whatsoever nature from the Opposite Party.
The Opposite Party denies that the complainants were promised 4 star hotels by the Opposite Parties, however they were provided 3 star hotels. It is submitted that the entire group stay was arranged in 3 star or similar hotel except in Hotel Chamonix in France and Hotel Park Hotel Arezzo, where the accommodation of the entire group was arranged in 4 star hotel. The Opposite Party further denies that the Hotels in Lille (Belgium) and Paris (France) were not even 3 stars. The Opposite Party submits that the porterage is not included in the tour price. Thus the passengers may require to carry their luggage. The Opposite Party submits that the Tour Manager did help and assisted the passengers on tour to carrying their bags. It is denied that the tour manager was highly incapable and inefficient. The Opposite Party states that the tour manager who escorted the group is an experienced Tour Manager in the field of tourism. The Opposite Party submits that the Tour Manager had enough knowledge about the tours and travel arrangements and had handled many tours and groups very successfully and got appreciations from many clients. On Day 9 when the Tour Manager enquired with the authorities, it was informed that due to bad weather conditions the Glacier- 3000 could not be visited. The Opposite Party submits that the Glacier 3000 could not be visited due to bad weather condition which is a Force Majure event beyond control of the Opposite party. Thus the Opposite Party cannot be held responsible for the same and the Complainants are not entitled to receive any compensation or refund form the Opposite Party. However as a goodwill gesture the Opposite Party did offer refund of Rs.44,720/- to the complainants and all other passengers on the group. All other passengers except the Complainants accepted the said refund. The Complainants have no cause of action to claim any damages from the Opposite Party. Hence prayed to dismiss the complaint.
4. The Complainant filed their Proof Affidavit and Written Arguments. On the Side of the Complainants Exhibits A -1 to A-17 marked. The Opposite Parties filed their Written Version alone and thereafter had failed to proceed with the case. No exhibits were marked on the side of the Opposite Parties.
5. POINTS FOR CONSIDERATION :-
1. Whether the Opposite Parties have committed unfair trade practice and deficiency of service?
2. Whether the Complainants are entitled for the relief claimed in the complaint or not?
3. Whether the Complainants are entitled for any other reliefs?
Point No.1 :-
The Complaint submitted that the 1st Complainant was working as Construction Manager in a Private Company at Dubai, UAE and the 2nd, 3rd, 4th being his wife and female Children, staying at Tirunelveli in order to get education from Indian Schools and the 2nd Complainant is taking care of 3rd and 4th Complainants who were studying in Tirunelveli. During Vacation the 3rd and 4th Complainants requested the 1st Complainant to arrange for European Tour, since they had not visited European Countries and to get them experience which they deserve, the 1st Complainant had agreed to arrange for the same.
It is undisputed fact that the 1st Complainant had approached the Opposite Parties and enquired about the tour package for European Tour and in response to his enquiry an email dated 27.01.2014 (Corrected the date as 29.01.2014 and not on 27.01.2014 as stated by the Opposite Parties in their written version, which was also found in Ex.A.9 the email dated 09.05.014 sent to the Opposite Parties) was sent with attachments and also given a reference No.746530 to him for his entire future correspondence. The said Email of the Opposite Parties was marked as Ex. A1, as it clearly mentioned that the Offer reflected as “Wife pays 50%” and the same found to be attractive and the 1st Complainant with the intention that the tour cost of his wife would be only 50% of her total cost and he had decided to reserve his bookings and accordingly had paid a sum of Rs.12,000/- towards Reservation Fees for the Complainants (being Rs.3000/- per person) on 31.01.2014 as found in Ex.A3 confirming his bookings for European Discovery Tour under Offer “Wife Pays 50%”. And a total payment of Rs.7,72,000/- made by the Complainants, as evident from Ex.A4 to A6 on 26.02.2014, 27.03.2014 and 12.04.2014, respectively. Since the 1st Complainant found that he had excess payment as against the Offer of wife pays 50% as well as 10% discount, an Email dated 28.04.2014 was sent to the Opposite Parties which was marked as Ex.A7 with calculation of excess payment made and claimed for refund of Rs.24,525/- as soon as possible. Instead of replying to the above said Email of the 1st Complainant, the 1st Opposite Party has sent an Email dated 30.04.014 at 11.37 for payment reminder, followed by an Email dated 30.04.2014 at 19.15 sent by the 1st Opposite Party in response to Ex.A7, wherein it was mentioned that “Having checked their records, we understand that Mr.Arasu have already sent the final costing applicable for your European Discovery 10% Cash back Offer. We regret we would be unable to extend the offer specified by you i.e., wife pays 50% as this was the promotional offer for Indian guests. Hence we regret we would be unable to refund any monies and offer you a positive response in this regard”. On seeing the reply the 1st Complainant got annoyed as he felt that he was taken for an easy ride and trapped for European Tour by promising an attractive offer at the initial stage and thereafter when on claiming the entitled refund the attitude of the Opposite Parties found to be strange by quoting the offer of Wife pays 50% applicable only to Indian guests, which is not at all found in Ex.A1, further the 1st Complainant holds Indian Passport and all the Complainants are Indians, though the Passports were not produced to prove the same before this Commission, the Offer promised under Ex.A1 does not contain that the offer was applicable for only Indian Guests. Though the Opposite Parties who had pleaded in the Written Version about the non applicability of the offer to the 2nd Complainant as it was only promotional offer and had newly introduced that the said offer was valid till 02.05.2014 and the Complainants had changed his plan of travel and had confirmed 10% cash back offer, hence they are not entitled for the said offer, but the Opposite Parties had failed to produce any authenticated proof to prove their pleadings. On perusal of Ex.A1 addressed to the 1st Complainant it was specifically mentioned that “On your European Discovery Tour, your wife pays only 50% of her tour cost” and nothing had mentioned that the said offer was applicable only for Indian Guests, though the departure date had been mentioned as 02.05.2014, as stated above no authenticated documents had been filed or produced by the Opposite Parties to prove the change of Plan of the Complainants travel date, before this Commission. Hence, we are the considered view that the Opposite Parties had committed Unfair Trade Practice by not providing the Offer of “wife pays 50%” as promised by them to the 2nd Complainant.
It is also an undisputed fact that the Complainants had paid the entire tour cost for the complainants as demanded by the Opposite Parties and the European discovery Tour of 8 countries viz. 1) United Kingdom 2) The Netherlands; 3) Belgium; 4) France; 5) Switzerland; 6) Liechtenstein; 7) Austria and 8) Italy, arranged by the Opposite Parties.
The Complainants contended that the Complainants had not only suffered mental agony at the very start of the Travel by not providing the travel documents including tour Itinerary, terms and conditions, list of hotels etc, in spite of the repeated requests made by the 1st Complainant as evident form the Email dated 02.05.2014 sent by the 1st Complainant to the Opposite Parties, which was marked as Ex.A8, and the Complainants had also suffered mental and physical agony in the entire tour arranged by the Opposite Parties, due to lengthy travels with small time for sight-seeing, travelling long distances even for taking dinner or supper, lack of adequate facilities, accommodation in inferior quality hotels, engaging incompetent driver, missing the important tourist spots due to the inadequate staff, the rude behaviour of the persons representing the Opposite Parties, changing the city at the time of returning to Dubai at the last minute, immediately on reaching Chennai the above grievances were reported by the 1st Complainant to the Opposite Parties, the Opposite Parties acknowledged the receipt of the Feedback by their email dated 23.05.2014 sent by the 1st Complainant and informed the same was sent to Head Operations and would look into the matter and shall try to solve on priority, as found in Ex.A12, wherein after a month in the Letter dated 25.06.2014, the date of receipt of the Feedback has been mentioned as 14.05.2014, the said letter was marked as Ex.A13, wherein the Opposite Parties in reply to the grievances raised by the Complainants had answered with regard to Long Travelling Hours – It was clearly mentioned clause Pearls of Wisdom under head Coaches about the travelling hours, With regard to the category of hotels in Padova and Arezzo- as mentioned in the Brochures as well as in their terms and conditions the arrangement about the hotels were mentioned, with regard to Concern with regard to Coach Captain – the Opposite Parties had sought for an apology and they have informed their suppliers not to use the driver again in their future tours, with regard to Sightseeing in Florence – due to delay in reaching Florence which resulted in missing out the visit of Duomo and the same was regretted, with regard to Change in departure City from Rome to Milan – confirmed seats for all the passengers were only available on the flight starting from Milan and regretted and sought for an apology for any inconvenience caused, with regard to Third Party involvement (Mr.Alok Seghal) an alliance in Italy – feedback given by the Complainants was noted and sought for an apology as his intervention was welcomed by the group, Feedback on Itinerary – on the 1st day post travel and on the last day they had not fixed any sightseeing or excursion which was mentioned in Itinerary shared at the time of Booking, further the admission of refunding of Rs.44,720/- for the non visit of Glacier-3000 due to bad weather on Day 9 of the tour, within 10 to 12 working from their regional offices, no attempts was taken by the Opposite Parties and the refund is not made till date. The Complainants submitted that they were not aware of the clauses and terms and conditions since all the papers were given to them just a day before the actual commencement of the Tour, even otherwise the same would not bind the Complainants as it was unilateral. The Complainants had also caused a legal notice dated 26.06.2014 to the Opposite Parties explaining the grievances faced by them and claimed for compensation, which was marked as Ex.A14 and the Opposite Parties on receipt of the said Legal notice had sent a interim reply dated 02.07.2014 and a detailed reply dated 29.07.2014 denying the claim of compensation made by the Complainants and replied that the Complainants were not entitled for any refund from the Opposite Parties, which were marked as Ex.A15 and Ex.A17. The detailed reply dated Ex.A1 was in contrary to Ex.A13, the Letter dated 25.05.2014 sent to the 1st Complainant. The Complainants had also contended and pointed out certain specific incidents which put them and other tourists to hardships, harassments, shame and mental agony, which were mentioned in Paragraph No. 21 (a) to (g) of the Complaint, though the Opposite Parties denied the said averments in their written version, had failed to produce any authenticated proof to prove their pleadings. The contention that this Commission does not have Jurisdiction to entertain in view of the Arbitration Clause and that the parties had chosen DCDRC, Mumbai will not hold good as the Arbitration clause will not preclude this Jurisdiction and the parties could not choose Jurisdiction of their choice. Hence, it would be clear for us to come a conclusion that the tour was not properly organised by the Opposite Parties as admitted in Ex.A13 by the Opposite Parties which clearly amounts to deficiency in service and thereby had caused serious mental and physical agony to the Complainants.
Point No.2 : -
Having thoroughly noted on the contentions made by the Complainants, that the Complainants right before the start of the travel were denied of offer promised by the Opposite Parties and denied to refund of the offer amount agreed under Ex.A1 by the Opposite Parties and that only the day before the date of Travel when the travel documents including tour itinerary, terms and conditions, list of hotels etc., provided by the Opposite parties and that in the entire tour the Complainants were not taken care of and treated as promised by the Opposite Party and missing of many of sightseeing places and also missing a main place as promised by the Opposite Parties and that even after completion of the Tour the Opposite Parties had not responded properly to the grievances faced in the entire tour by the Complainants and failed to refund the amount agreed for missing visit of a place till date, and it is also important to point that the Opposite Parties except filing their written version had not shown any interest to proceed with the case and had not filed any valid proof in support of their pleadings and had not filed the documents mentioned as Annexures in the written version. As we have discussed and decided in Point No.1, the Complainants are entitled for compensation for the Unfair Trade Practice as well as Deficiency of Service committed by the Opposite Parties, we are considered view that the Opposite Parties are jointly and severally directed to pay a sum of Rs.1,00,000/- towards compensation for the act of deficiency of service committed by the Opposite Parties which caused mental and physical agony to the Complainants and to pay a sum of Rs.69,425/- (being Rs.44,720/- towards agreed refund for missing visit of Glacier-3000 and Rs.24,525/- towards refund of the Offer of Wife Pays 50%) together with interest at the rate of 6% per annum from the date of the complaint till the date of the Order and also to pay a sum of Rs.5,000/- towards cost of the Complaint.
Point No.3 :-
As point No.2 is decided in favour of the Complainants, the Complainants are not entitled for any other relief.
In the result the Complaint is allowed in part. The Opposite Parties are jointly and severally directed to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) towards compensation for the act of deficiency of service committed by the Opposite Parties which caused mental and physical agony to the Complainants and to pay a sum of Rs.69,425/- (Rupees Sixty Nine Thousand Four Hundred and Twenty Five Only) (being Rs.44,720/- towards agreed refund for missing visit of Glacier-3000 and Rs.24,525/- towards refund of the Offer of Wife Pays 50%) together with interest at the rate of 6% per annum from the date of complaint i.e, 09.02.2015 till the date of the Order and also to pay a sum of Rs.5,000/- (Rupees Five Thousand Only) towards cost of the Complaint, within 8 weeks from the date of this order, failing which the above amounts shall carry interest at the rate of 6% p.a from the date of this order till the date of payment.
In the result the complaint is allowed.
Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 18th day of May 2022.
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
List of documents filed on the side of the Complainant:-
Ex.A1 | - | Tour Programme |
Ex.A2 | - | Tour Brochure |
Ex.A3 | 31.01.2014 | Payment Receipt |
Ex.A4 | 26.02.2014 | Payment Receipt |
Ex.A5 | 27.03.2014 | Payment Receipt |
Ex.A6 | 12.04.2014 | Payment Receipt |
Ex.A7 | 28.04.2014 | E-mail Communication |
Ex.A8 | 09.05.2014 | E-mail Communication |
Ex.A9 | 09.05.2014 | E-mail Communication |
Ex.A10 | 13.05.2014 | Payment Receipt |
Ex.A11 | - | Travelport View Trip Itinerary |
Ex.A12 | 23.05.2014 | E-mail Communication |
Ex.A13 | 25.06.2014 | Letter from the 2nd Opposite Party |
Ex.A14 | 26.06.2014 | Legal notice to the 1st & 2nd Opposite Parties |
Ex.A15 | 02.07.2014 | Reply by the 2nd Opposite Party |
Ex.A16 | 13.07.2014 | E-mail communication |
Ex.A17 | 29.07.2014 | Detailed reply by the 2nd Opposite Party |
List of documents filed on the side of the Opposite Parties:-
NIL
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
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