Tamil Nadu

South Chennai

307/2011

Chittibabu Sivakumar - Complainant(s)

Versus

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

S.M.Murali Dharan

06 May 2019

ORDER

                                                                        Date of Filing  : 21.10.2011

                                                                          Date of Order : 06.05.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. 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

 

C.C. No.307/2011

DATED THIS MONDAY THE 06^TH DAY OF MAY 2019

                                 

Chittibabu Sivakumar,

S/o. Mr. M. Chittibabu,

No.100, Dr. A. Lakshmanaswamy Road,

K.K. Nagar,

Chennai – 600 078.                                                        .. Complainant.                             

                                                                                             ..Versus..

 

M/s. Cox & Kings Ltd.,

Represented by its Managing Director,

No.10, Karunaa Corner,

Spurtank Road,

Chetput,

Chennai – 600 031.                                                  ..  Opposite party.

 

Counsel for the complainant     : M/s. S.M. Murali Dharan

Counsel for the opposite party : M/s. Mothilal & others

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.65,836/- towards refund of INR 26,240/- being additional fuel surcharge wrongly charged, INRI 1,498/- for tips collected but no service rendered, INR 33,354/- excess rate for 14824 US$ (@ 2.25 INR per US$) and INR 4,744/- for the amounts spent on phone calls made in this regard to the opposite party and others at Chennai and Mumbai and to pay a sum of Rs.5,00,000/- towards compensation for deficiency in service and mental agony with cost to the complainant.

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

The complainant submits that he booked a tour package through ‘AMERICAN SPLENDOURS WITH CRUISE – CASH BACK OFFER’.   The complainant quoted the tour price and worked out to Rs.2,24,970/- only per passenger.  But the opposite party worked out it as Rs.2,36,644/-.  The complainant paid a total sum of Rs.2,66,000/- in five instalments.  Accordingly, the schedule of departure is on 08.05.2011 either from Ex-Mumbai or from Chennai keeping in mind his son’s school reopening date.  The complainant has requested the option of boarding from Chennai.  The opposite party has also collected a sum of Rs.8,000/- towards such boarding in addition to above tour price.   The complainant submits that the opposite party has informed the complainant that there is a deviation of commencement of tour i.e. instead of Chennai from Mumbai and date of commencement of tour of 08.05.2011 to 22.05.2011.  Hence, the complainant requested the opposite party to board from Chennai subject to availability and the payment of different air fare which was also permitted by the opposite party.   The complainant submits that without any intimation, the opposite party has changed the tour commencement date from 08.05.2011 to 22.05.2011.  Because the complainant’s son has to join the school immediately after summer vacation, the complainant preferred the commencement of tour on 08.05.2011.  The complainant submits that as per the terms and conditions, the opposite party has every right to change the departure date, arrival date and modify the tour package itinerary, amend the tour package etc. 

2.     The complainant submits that the claim of Rs.26,240/- towards the increase in air lines fuel surcharge is also arbitrary.  The complainant submits that when he asked the opposite party’s Manager, one Mr. Arun to check the payment details, it was found that the opposite party had collected INR 1,50,055/-. The complainant submits that before the commencement of tour on 09.05.2011, the opposite party, Chennai Branch staff compelled the complainant to buy American dollars from them at the rate of INR 46.45 per USD while the market rate is INR 45.20. The complainant submits that it is very unpleasant that the complainant is having his 12 years old son and 77 years old father has been given seat in the flight in a scattered manner.  Even after repeated requests for adjacent seats, the opposite party refused to do so.  The complainant submits that in New York, the complainant and his group was made to wait 1½ hours in the bus along with the co-passengers suffered lot at airport.  The complainant submits that on the next day, hotel instead of providing tiffin in the morning it was belated unreasonable. The complainant and his family suffered a loss due to inadequate rest and get up early to visit Niagara trip on the next day since up to 11 p.m.   The complainant and the entire tour group put to site seeing of National Space and Air Museum.  The complainant submits that at Orlando during all the three days, the opposite party directed to collect lunch box at the gate which is  2 kms away from the lodging place in a scoring sun.  For want of coordination since the opposite party made the 3^rd party to arranged the things.  The visit of cruise was scheduled for 06.06.2011 wherein, there was no Tour Manager to make arrangements.  In the absence of guide, the complainant and their group suffered a lot.   The complainant submits that the opposite party postponed the return journey arbitrarely and extended their stay at Los Angels without any intimation even without lunch made them to sit idle in their rooms.   The complainant submits that he opted for return journey viz. Dubai and had planned to a short stay in Dubai.   The complainant submits that the opposite party made great mismanagement by insufficient staffs during the return journey.    The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

3.      The brief averments in the written version filed by opposite party is as follows:

The opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.     The opposite party states that the complainant and his family members booked the tour through ‘AMERICAN SPLENDOURS WITH CRUISE – CASH BACK OFFER’.   The departure schedule is on 08.05.2011 from Ex-Mumbai - Delhi.  The complainant also after careful studying the terms conditions, duly filled up the booking form.    The opposite party also never reject the booking form.  Hence, it can be presumed that some arrangement shall be made for boarding from Chennai.  The complainant also completed the tour one way from Chennai to Mumbai and thereby, Mumbai to Los Angels and the tour of return was scheduled from Los Angels to Dubai and Dubai to Chennai.  The opposite party states that the change of tour departure and modification are the privileges given to the opposite party as per the terms and conditions which has been accepted by the complainant.   The opposite party states that a sum of Rs.26,240/- collected towards fuel surcharge.   The fuel surcharge are imposed by the concerned Airlines.   The complainant did not approach the opposite party to collect the said amount.   The opposite party states that the allegation of the arrangement of seats in a scattered manner has nothing to do with the opposite party since, the air authorities allotted the seats.  The internal arrangements cannot be made by this opposite party.  The other allegations related to delay in pick up, waiting in airport, in bus etc are the part of the tour is solely due to the patching of time in spending, site seeing etc.  The opposite party states that the packed lunch was provided very late in the scorching sun are imaginary.  The opposite party states that the tour passengers were suffered due to starvation and proper arrangements for accommodation, boarding and lodging were made.   Therefore, there is no deficiency in service on the part of the opposite party and hence, the complaint is liable to be dismissed.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A9 are marked.  Proof affidavit of the opposite party is filed and documents Ex.B1 to Ex.B3 are marked on the side of the opposite party.

5.      The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.65,836/- towards the refund of INR 26,240/- towards additional fuel surcharge, INR 1,498/- for tips collected, INR 33,354/- towards excess rate for 14824 US$, INR 4,744/- towards phone calls as prayed for?
2. Whether the complainant is entitled to a sum Rs.5,00,000/- towards compensation for deficiency in service and mental agony with cost as prayed for?

6.      On point:-

Both parties filed their respective written arguments.  Heard both sides.  Perused the records namely; the complaint, written version, proof affidavits and documents.  The complainant pleaded and contended that he booked tour through ‘AMERICAN SPLENDOURS WITH CRUISE – CASH BACK OFFER’ as per Ex.B2, booking form which shows the terms and conditions.  The complainant quoted the tour price and worked out to Rs.2,27,970/- only per passenger.  But the opposite party worked out it as Rs.2,36,644/-.  The complainant paid a total sum of Rs.2,66,000/- in five instalments.  Accordingly, the schedule of departure is on 08.05.2011 either from Mumbai or from Delhi keeping in mind his son’s school reopening date.   But on a careful perusal of the duly filled-up forms, it shows that the complainant requested boarding from Chennai.  The opposite party has not denied the option of boarding from Chennai.  The opposite party has also collected a sum of Rs.8,000/- towards such boarding.   But no receipt filed.  Further the contention of the complainant is that the opposite party has informed the complainant that there is a deviation of commencement of tour i.e. instead of Chennai from Mumbai and date of commencement of tour of 08.05.2011 to 22.05.2011.  Hence, the complainant requested the opposite party to board from Chennai subject to availability and the payment of different air fare which was also permitted by the opposite party.  But there is no clear evidence in this case whether the complainant has paid a sum of Rs.8,000/- towards boarding from Chennai or whether the complainant and his group commenced the tour from Mumbai.

7.     Further the contention of the complainant is that without any intimation, the opposite party has changed the tour commencement date from 08.05.2011 to 22.05.2011 which caused great inconvenience.  Because the complainant’s son has to join the school immediately after summer vacation, the complainant preferred the commencement of tour on 08.05.2011.  Further the contention of the complainant is that as per the terms and conditions, the opposite party has every right to change the departure date, arrival date and modify the tour package itinerary, amend the tour package etc which is arbitrary.  Further the contention of the complainant the claim of Rs.26,240/- towards the increase in air lines fuel surcharge is also arbitrary and baseless.  The opposite party after completion of tour, called the complainant to get refund of the said amount.   Further the contention of the complainant is that when he asked the opposite party’s Manager, one Mr. Arun to check the payment details, it was found that the opposite party had collected INR 1,50,055/-.   But there is no iota of evidence in this case.  There is no such claim also made in this complaint. 

8.     Further the contention of the complainant is that before the commencement of tour on 09.05.2011, the opposite party, Chennai Branch staff compelled the complainant to buy American dollars from them at the rate of INR 46.45 per USD while the market rate is INR 45.20.   For that also, the complainant has not adduced any evidence and produced any document to prove how much USD has been purchased from the opposite party and what is the quantum of amount excess paid towards purchasing the USD.   Further the contention of the complainant is that it is very unpleasant that the complainant is having his 12 years old son and  77 years old father has been given seat in the flight in a scattered manner.  Even after repeated requests for adjacent seats, the opposite party refused which also caused great mental agony.  The complainant also has not filed the ticket showing the seat number also.  Further the contention of the complainant is that in New York, the complainant and his group was made to wait 1½ hours in the bus along with the co-passengers suffered lot at airport.  But all the other co-passengers has not raised any such inconvenience for such waiting.  Equally on the next day, hotel instead of providing tiffin in the morning it was belated unreasonably.  The complainant and his family suffered a loss due to inadequate rest and get up early to visit Niagara trip on the next day since up to 11 p.m.   The complainant and the entire tour group put to site seeing of National Space and Air Museum. 

9.     Further the contention of the complainant is that at Orlando during all the three days, the opposite party directed to collect lunch box at the gate which is  2 kms away from the lodging place in a scorching sun.  For want of coordination since the opposite party made the 3^rd party to arranged the things.  The visit of cruise was scheduled for 06.06.2011 wherein, there was no Tour Manager to make arrangements.  In the absence of guide, the complainant and their group suffered a lot.  Further the contention of the complainant is that the opposite party postponed the return journey arbitrary and extended their stay at Los Angels without any intimation even without lunch sit made them idle in their rooms which caused great mental agony.   Further the contention of the complainant is that he opted for return journey viz. Dubai and had planned to a short stay in Dubai.  But the complainant did not receive any travel document to Dubai from United States even after fervent request made repeatedly.    Further the contention of the complainant is that the opposite party made great mismanagement by insufficient staffs during the return journey.  The complainant is claiming a sum of Rs.65,835/- towards excess payment received by the opposite party.   But on a careful perusal of records, Ex.A8, letter sent by the opposite party for refunding a sum of Rs.26,240/- wherein, email acceptance also printed.  But in legal notice dated:11.08.2011 as per Ex.A6, the complainant specifically admitted the receipt of Rs.26,240/- and the other amounts.   The excess commission towards USD and other expenses towards phone calls and serves where not proved by way of clear evidence.  On the other hand, as per Ex.B2, the opposite party has every right to change the scheme, fee, etc.

10.    The contention of the opposite party is that admittedly, the complainant and his family members booked the tour through ‘AMERICAN SPLENDOURS WITH CRUISE – CASH BACK OFFER’.  The departure schedule is on 08.05.2011 from Ex-Mumbai - Delhi.  The complainant also after careful studying the terms conditions, duly filled up the booking form.   But on a careful perusal of Ex.B2, booking form, the boarding at Chennai.  The opposite party also never object the booking form.  Hence, it can be presumed that some arrangement shall be made for boarding from Chennai.  The complainant also completed the tour one way as per Ex.B3 from Chennai to Mumbai and thereby, Mumbai to Los Angels and the tour of return was scheduled from Los Angels to Dubai and Dubai to Chennai.  On a careful perusal of  Ex.B3, it reads as follows:

“Cox & kings Ltd will provide an additional night in Los Angeles and in relation to his additional night, Cox & Kings Ltd will provide ONE night’s accommodation with breakfast and dinner in Los Angeles for the entire group without any additional cost”.

Further contention of the opposite party is that the change of tour departure and modification are the privileges given to the opposite party as per the terms and conditions which has been accepted by the complainant which reads as follows:

ITENERARY MAY CHANGE AT ANY TIME

“a) We reserve the right to alter, amend, change or modify the tour package and itineraries before or during the tour.  We will make reasonable efforts to notify you promptly of such changes / events sufficiently in advance during booking or prior to departure of the tour.  If such changes / events incur during the tour, out tour manager or local representative will inform you of the changes on the spot and we solicit your full co-operation in accepting such circumstantial changes.  Therefore, no grievance regarding any itinerary / service change which are constrained to make, will be entertained from the tour participants during or after the tour.  Please note that promotional offers may have different terms and conditions which will be in addition to these terms and conditions and the requirements of the booing deposits, payments, deadlines and mode of payment may be defined in such promotions which will be over and above these terms and conditions.

d) Change in itinerary may also be required or necessitated on account of actions, inactions, defaults or condition of tour participants in the group.   We will make reasonable efforts to keep the overall package of services unchanged.  However, we shall not be liable to refund any amount or pay any compensation on account of any change in itinerary.  In case the alternate arrangements made are materially superior as compared to the ones described in the Brochure, we may charge extra for the same at the time of booking or in the course of the tour”

11.    Further the contention of the opposite party is that a sum of Rs.26,240/- collected towards fuel surcharge.  Fuel surcharge are imposed by the concerned Airlines.   Further the complainant did not approach the opposite party to collect the said amount.    The complainant has filed this case after accepting the amount amounts to abuse of process of law.   Further the contention of the opposite party is that the allegation of the arrangement of seats in a scattered manner has nothing to do with the opposite party since, the air authorities allotted the seats.  The internal arrangements cannot be made by this opposite party.  The other allegations related to delay in pick up, waiting in airport, in bus etc are the part of the tour is solely due to the patching of time in spending, site seeing etc.  The allegation that packed lunch was provided very late in the scorching sun are imaginary.  None of the tour passengers were suffered due to starvation. Proper arrangements for accommodation, boarding and lodging were made and was not questioned by the other passengers.  The claim towards USD commission etc are against the true facts.  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 06^th day of May 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	13.12.2010	Copy of receipt bearing No.13122010CSICEX issued by the opposite party to complainant
Ex.A2	10.02.2011	Copy of receipt bearing No.10022011 onPnYc issued by the opposite party to complainant
Ex.A3	09.04.2011	Copy of receipt bearing No.10022011 onPnYc issued by the opposite party to complainant
Ex.A4	20.04.2011	Copy of receipt bearing No.20042011 upBHBF issued by the opposite party to complainant
Ex.A5	20.04.2011	Copy of receipt bearing No.20042011 xWvaHj issued by the opposite party to complainant
Ex.A6	11.08.2011	Copy of legal notice issued by the complainant to opposite party with postal acknowledgement card
Ex.A7	14.09.2011	Copy of reply issued by the opposite party to complainant
Ex.A8		Copy of letter in printed form furnished by the opposite party claiming surcharge collected in excess
Ex.A9		Copy of Emails exchanged between the complainant and opposite party

OPPOSITE PARTY SIDE DOCUMENTS:-

Ex.B1		Copy of Board Resolution of Mr. Raja
Ex.B2	02.12.2010	Coy of booking form along with terms and conditions & price Grid
Ex.B3	21.05.2011	Copy of confirmation approval from the complainant

 

 

 

MEMBER                                                                                PRESIDENT