Tamil Nadu

South Chennai

356/2010

R.Sampath & another - Complainant(s)

Versus

M/s.Cox & Kings (India)Ltd - Opp.Party(s)

T.Kamala Kannan

03 Jan 2019

ORDER

                                                                        Date of Filing  : 15.09.2010

                                                                          Date of Order : 03.01.2019

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP., : MEMBER-II

 

C.C. No.356/2010

DATED THIS THURSDAY THE 03^RD DAY OF JANUARY 2019

                                 

1. R. Sampath,

S/o. Shri. T.N. Rathinam Iyer,

No.1750/2, 13^th Main Road,

Anna Nagar West,

Chennai - 600 040.     

 

2. Mrs. V. Radhalakshmi,

W/o. Mr. R. Sampath,     

No.1750/2, 13^th Main Road,

Anna Nagar West,

Chennai - 600 040.                                                   .. Complainants.                                                

 

                                                 ..Versus..

 

1. M/s. Cox & Kings (India) Limited,

Turner Morrison Building,

No.16, Bank Steet,

Fort,

Mumbai – 400 001.

 

2. M/s. Cox & Kings (India) Ltd.,

No.10, Karunaa Corner,

Spur Tank Road,

Chetpet,

Chennai – 600 031.                                                 ..  Opposite parties.

          

 

Counsel for complainants                      :  M/s. T. Kamalakannan &

                                                                   others

Counsel for the opposite parties 1 & 2 :  M/s. C.S  Kiran & another

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainants against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to refund the sum of Rs.40,000/- paid as additional charges for the European Experience Tour conducted by the opposite parties and to pay a sum of Rs.2,00,000/- towards compensation for loss and damages with cost to the complainants.

1.    The averments of the complaint in brief are as follows:-

The complainants submit that on 14.07.2009, he approached the 2^nd opposite party along with his wife ascertained the European Tour and paid a sum of Rs.Rs.6,000/- as advance for the scheduled trip to be commenced on 26.08.2009 from New Delhi.   The complainants submit that the balance amount of Rs.75,000/- has been paid on 21.07.2009 for the said scheduled trip dated:26.08.2009.    The complainants submit that on 24.07.2009, one Ms. Nivedha claiming herself to be Jr. Executive in the opposite party company phoned up and  informed the complainants that there are no seats available for the trip to the schedule dated:26.08.2009 and the complainants was asked to reschedule the trip to 16.09.2009.   The complainants submits that since the complainants are not in a position to avail the trip on 16.09.2009; at the request of the opposite party, the complainants accepted to reschedule the trip preponeing the trip on 24.08.2009.   The complainants submit that after preponeing the trip, the complainants were compelled to cancel the train tickets which incurred huge loss.   The complainants submit that as the visa related to the trip also not received in proper time resulting cancellation of the trip dated:26.08.2009 caused much more hardship and the complainants were compelled to avail the ticket for the trip dated:26.08.2009.  The complainants submit that the opposite parties demanded and collected a sum of Rs.40,000/- towards such preponement of trip to 24.08.2009 resulting cancellation of flight ticket and accommodation etc due to the delay in receipt of the visa.  The act of the opposite parties caused great mental agony.   Hence, this complaint is filed.

2.      The brief averments in the written version filed by the  opposite parties 1 & 2 is as follows:

The opposite parties 1 & 2 specifically deny each and every allegations made in the complaint and put the complainants to strict proof of the same.     The opposite parties 1 & 2 state that this complaint is not maintainable because this Forum has no jurisdiction.   The jurisdiction lies only with Mumbai.    The opposite parties 1 & 2 state that the complainants had not approached this Forum with clean hands and filed this complaint suppressing material facts.  The opposite parties 1 & 2 state that the complainants had approached this opposite party on 14.07.2009 for the alleged trip dated:26.08.2009 and paid a sum of Rs.3,000/- towards registration and booking.   As per the terms and conditions it reads as follows:

 REGISTRATION

Booking on your own

“You have read and understood the Tour Brochure / itinerary and the “Terms and conditions” and accordingly signed the Booking form and Terms & conditions which will be binding on the parties and shall constitute a contract between the parties upon your signing the same and making payment towards the prescribed non-refundable interest fee booking amount”. 

Travel Documents and clearances

“If the cancellation of the tour is done by you to non-availability of the passport of any of the tour participants, even the cancellation charges would be payable  by you.

In the event that your are unable to travel on the tour originally booked by you, due to rejection of your visa by the concerned Embassy,  you shall have the option to postpone your tour to any other future date or transfer your tour to any other tour and in such case the transfer fee for the transfer of the tour shall apply.  However, if you booked and paid for the tour within the cancellation period and are unable to travel due to any reason whatsoever including the non availability of Visa or any travel documents, the cancellation policy as appearing in our ‘How to Book’ rules would still apply”.

3.     The opposite parties 1 & 2 state that the balance amount has been paid by the complainant only on 21.07.2009 after an inordinate delay.  As per the terms and conditions, the complainants were liable to pay the full amount of the tour cost before 45 days from the date of departure of the trip resulting delay in receipt of the visa.   The opposite parties 1 & 2 state that the allegation that the Junior Executive Officer Ms. Nivedha called the complainant on 24.07.2009 and requested to reschedule the trip to 16.09.2009 since the seat has been sold out for the trip dated:26.08.2009 and the reasons related to the consumption of time for availing visa etc.  Since the complainant has not accepted for such rescheduled dated:16.09.2009 and requested to prepone the trip to 24.08.2009 and the availability of the ticket this opposite parties also accepted  and booked the  flight ticket for the trip dated:24.08.2009.  The opposite parties state that the preponement of date of trip resulting cancellation of train ticket and other expenses.    The opposite parties state that there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A18 are marked.  Proof affidavit of the opposite parties 1 & 2 is filed and documents Ex.B1 to Ex.B3 are marked on the side of the opposite parties 1 & 2.      

 

5.      The points for consideration is:-

1. Whether the complainants are entitled to get refund of the additional payment of a sum of Rs.40,000/- paid towards European Experience as prayed for?
2. Whether the complainants are entitled a sum of Rs.2,00,000/- towards compensation for expenses incurred for purchasing the train tickets, cancellation of charges and Air Ticket charges and compensation for mental agony with cost as prayed for?

6.      On point:-

The complainants filed their written arguments.  The opposite party has not filed any written arguments and not turned up to advance any oral argument also.   Perused the records namely the complaint, written version, proof affidavits and documents.  The complainants pleaded and contended that on 14.07.2009, they approached the 2^nd opposite party along with his wife and ascertained the European Tour and paid a sum of Rs.Rs.6,000/- as advance for the scheduled trip commenced on 26.08.2009 from New Delhi as per Ex.A2.  Further the contention of the complainants is that the balance amount of Rs.75,000/- has been paid on 21.07.2009 for the said scheduled trip dated:26.08.2009 as per Ex.A3.  Further the contention of the complainants is that on 24.07.2009, one Ms. Nivedha claiming herself to be Jr. Executive in the opposite parties company phoned up and  informed the complainants that there are no seats available for the trip schedule dated:26.08.2009 and the complainant was asked to reschedule the trip to 16.09.2009.  But there is no record.  Equally, the contention of the complainants is that since the complainant is not in a position to avail the trip on 16.09.2009; at the request of the opposite party, the complainants accepted  to reschedule the trip by preponeing the trip on 24.08.2009.   For that also, there is no record.   On a careful perusal of Ex.B2 terms and conditions, the complainants were liable to pay full amount of the tour cost before 45 days from the date of departure.   In this case, the complainants had paid the full amount only on 21.07.2009 which is less than 45 days. 

7.     Further the contention of the complainants is that  after preponeing the trip, the complainant was compelled to cancel the train tickets resulting huge loss.  But the complainants had not produced any evidence to prove such cancellation of train tickets.   Further the contention of the complainant is that at the visa related to the trip also not received in proper time resulting cancellation of the trip dated:24.08.2009 caused much more hardship and the complainants were compelled to avail the ticket for the trip dated:26.08.2009.  Further the contention of the complainants is that the opposite parties demanded and collected a sum of Rs.40,000/- towards such preponement of trip to 24.08.2009 resulting cancellation of flight ticket and accommodation etc due to the delay in receipt of the visa amounts to deficiency in service.  But on a careful perusal of records particularly, the terms and conditions the complainants failed and neglected to comply the conditions related to the payment of amount within the stipulated time resulting preponement, delay in receiving the visa, cancellation of ticket both train, flight and accommodations.  The complainants are claiming to refund a sum of Rs.40,000/- paid additionally with a compensation of Rs.2,00,000/- and cost.

8.     The contention of the opposite parties 1 & 2 is that this complaint is not maintainable because this Forum having no jurisdiction much less, territorial jurisdiction.   The jurisdiction lies only within Mumbai.   Mere location of Branch Office shall not give the jurisdiction; is not acceptable.   Further the contention of the opposite parties 1 & 2 is that the complainants had not approached this Forum with clean hands and filed this complaint suppressing material facts.  Further the contention of the opposite parties 1 & 2 is that admittedly, the complainants had approached this opposite party on 14.07.2009 for the alleged trip dated:26.08.2009 and paid a sum of Rs.3,000/- each towards registration and booking.  As per Ex.B2, the terms and conditions it reads as follows:

 REGISTRATION

Booking on your own

“You have read and understood the Tour Brochure / itinerary and the “Terms and conditions” and accordingly signed the Booking form and Terms & conditions which will be binding on the parties and shall constitute a contract between the parties upon your signing the same and making payment towards the prescribed non-refundable interest fee booking amount”. 

 

Travel Documents and clearances

“If the cancellation of the tour is done by you to non-availability of the passport of any of the tour participants, even the cancellation charges would be payable  by you.

In the event that your are unable to travel on the tour originally booked by you, due to rejection of your visa by the concerned Embassy,  you shall have the option to postpone your tour to any other future date or transfer your tour to any other tour and in such case the transfer fee for the transfer of the tour shall apply.  However, if you booked and paid for the tour within the cancellation period and are unable to travel due to any reason whatsoever including the non availability of Visa or any travel documents, the cancellation policy as appearing in our ‘How to Book’ rules would still apply”.

9.     Further the contention of the opposite parties 1 & 2 is that the balance amount has been paid by the complainants only on 21.07.2009 after an inordinate delay. As per Ex.B2 terms and conditions, the complainants were liable to pay the full amount of the tour cost before 45 days from the date of departure of the trip resulting delay in receipt of the visa.   Further the contention of the opposite parties 1 & 2 is that the allegation that the Junior Executive Officer Ms. Nivedha called the complainants on 24.07.2009 and requested to reschedule the trip to 16.09.2009 since the seat has been sold out for the trip dated:26.08.2009 and the reasons related to the consumption of time for availing visa etc are not proved. Since the complainants had not accepted for such rescheduled dated:16.09.2009 and requested to prepone the trip to 24.08.2009 and the availability of the ticket this opposite parties also accepted  and booked the flight ticket for the trip dated:24.08.2009.  But unfortunately eventhough the visa has been withheld by the embassy and since the embassy did not release the visa on time the complainants cancelled the tour dated:24.08.2009.   Further the contention of the opposite parties is that the all that preponement of date of trip resulting cancel of train ticket and other expenses incurred by the complainants are not because of the opposite parties.  Equally, the additional charge of Rs.40,000/- for rebooking flight and accommodation in hotel as per Ex.A8 is only due to the preponement request of the complainants.  Further the contention of the opposite parties is that there is no deficiency in service on the part of the opposite parties. The complainants’ claim is exorbitant.    Considering  the facts and circumstances of the case this Forum is of the considered view that this complaint has to be dismissed.

In the result, this complaint is dismissed.   No costs.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 03^rd day of January 2019. 

 

MEMBER-II                                                                   PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1		Copy of pre-defined Flights Schedule for the Chosen Departure starting on 26.08.2009 from Delhi and returning to Delhi on 05.09.2009
Ex.A2	20.07.2009	Copy of receipt No.20072009bmKWhC for Rs.6,000/-
Ex.A3	21.07.2009	Copy of receipt Nol21072009kPimJB for Rs.75,000/-
Ex.A4	10.08.2009	Copy of receipt No.10082009jjxiQX for Rs.1,08,695/-
Ex.A5	25.08.2009	Copy of receipt No.1773 for Rs.40,000/-
Ex.A6	20.08.2009	Copy of E-Air Ticket No.2353606031910-911 onward and return ticket for R. Sampath
Ex.A7	20.08.2009	Copy of E-Air ticket No.2353606031912C1/912-913 onward and return ticket for V. Radhalakshmi
Ex.A8		Copy of HOTEL LIST – List of hotels booked for us in various places from 24.08.2009 to 03.09.2009 in anticipation of Schengen Visa
Ex.A9		Copy of Insurance Policy No.121800/48/2008/6914/CNK07-08/158173 for R. Sampath for the period from 24.08.2009 to 04.09.2009 taken in anticipation of Schengen visa
Ex.A10		Copy of Insurance Policy No.121800/48/2008/6914/CNK07-08/158174 for V. Radhalakshmi for the period from 24.08.2009 to 04.09.2009 taken in anticipation of Schengen visa
Ex.A11	18.09.2009	Copy of Cox & Kings (India) Limited, Invoice No.C & K/301/09 Dated:18.09.2009 for Rs.2,48,542/-
Ex.A12	23.09.2009	Copy of first notice served on their Chennai Office endorsing a copy to their Mumbai office and another copy to the Chairman, Rotary Consumer Grievance Cell, Anna Nagar, Chennai – 600 040.
Ex.A13	24.10.2009	Copy of reply received from Cox & Kings for the above notice
Ex.A14	10.12.2009	Copy of second notice served on their Mumbai office endorsing a copy to the Chairman, Rotary Consumer Guidance Cell, Anna Nagar, Chennai – 600 040.
Ex.A15	08.02.2010	Copy of reminder to their Mumbai Office for the second notice endorsing a copy to Consumer Guidance Cell, Anna Nagar, Chennai – 600 040.
Ex.A16	03.03.2010	Copy of reply received from Cox & Kings for the second notice
Ex.A17	08.02.2010	Copy of legal notice served by the Chairman of the Rotary consumer Guidance Cell, Anna Nagar, Chennai – 600 040 on Cox & Kings.
Ex.A18	05.03.2010	Copy of reply received for Cox  & Kings to the Chairman, Rotary Consumer Guidance Cell, Chennai.

 

OPPOSITE  PARTIES 1 & 2 SIDE DOCUMENTS:- 

Ex.B1	24.10.2008	Copy of Power of Attorney in favour of Mr. C. Sriraman
Ex.B2	14.07.2009	Copy of booking form and Terms and conditions, Booking Guidelines available on the internet
Ex.B3	20.08.2009	Copy of email sent to French consulate by the opposite party

 

 

 

MEMBER-II                                                                   PRESIDENT