BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.4/2014

Dated this the 5^th day of November 2015.

Thiagarajan Nagappan, son of Nagappan,    

No.5, III Cross, Rainbow Nagar,                 

Puducherry – 605 011.

                                                ….     Complainant

Vs.

1. M/s SOTC-World Famous Tours             

    A Division of KUNOI Travel (India) Pvt. Ltd.,

    Rep. by its Managing Director-cum-Authorised   

    Signatory, 8^th Floor, Tower A, Urmi Estate,

    95, Ganapat Rao Kadam Marg,

    Lower Parel (W), Mumbai – 400 013.

2. M/s SOTC-World Famous Tours             

    A Division of KUNOI Travel (India) Pvt. Ltd.,

    Rep. by its Senior Manager-cum-Authorised

    Signatory, SOTC House, No.134, Valluvarkottam

    High Road, Nungambakkam High Road,

    Chennai.

3. M/s SOTC-World Famous Tours             

    A Division of KUNOI Travel (India) Pvt. Ltd.,

    Pondicherry Branch, rep. by its Branch Manager

    -cum-Authorised Signatory, 57, Montorsier Street

    Puducherry. 1

                                                     … Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B., 

           MEMBER

FOR THE COMPLAINANT            :  Thiru,A. Adhinarayanane, Advocate

FOR THE OPPOSITE PARTIES     :  OP 1 and OP3 ex-parte. 

                Thiru Devadoss, Advocate is on record

                                                                    For OP2 – Thiru Muthukumaran,  

                                                                   Advocate

O R  D  E  R

(By Thiru.A. ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to direct the opposite parties to pay the balance amount of Rs.29,000/- to the complainant with interest at 24% per annum from 23.01.2013 till the date of realisation; to direct the opposite parties to pay the non-refundable Train Fair Amount of Rs.12,800/-  as booked by the complainant on 12.03.2013 for travelling on 12.06.2013 from Paris to London with interest at 24% per annum from 12.03.3013 till the date of realisation; to direct the opposite parties to pay the additional rail ticket amount of Rs.28,000/- which was booked for travelling on 11.06.2013 instead of 12.06.2013 with interest at 24% per annum from 11.06.2013 till the date of realisation;  to direct the opposite parties to pay the compensation amount to the tune of Rs.4.00 lakhs to each i.e. the complainant and his family members totally to Rs.16.00 lakhs for the stress, sleepless night caused to them due to the opposite parties act of deficiency in service and mental agony and torture caused by the Opposite Parties to the complainant and his family members.

2.  The case of the complainant is as follows:

          The first Opposite Party is running a World Famous Tour having Head Office at Mumbai and having branches all over India.  The second OP is  having office at Chennai and third OP is having Office at Pondicherry and have advertised in "The Times of India" Daily Chennai Edition on 22.01.2013 regarding arrangement and coordination of Package Tours under the branch name SOTC World Famous Tour in the name of Package Tour "South Indian Special European Spice" and to other foreign countries tour.  The Complainant approached the OP3 and offered to join in the above said tour at London and the same was agreed by the OP and reduced the Flight Charges (up and down) from Chennai to London vice versa and issued Cost per adult on Twin Sharing Basis for Rs.1,15,177/- per head.  The complainant paid the advance booking amount and applied in Booking Form on 23.01.2013 for the above said tour and issued cheque for Rs.1,66,000/-  for four persons drawn on City Bank, Pondicherry Branch  and the same was endorsed by the third OP on the booking Form and the cheque amount was credited in the Opposite Party's bank account at Chennai Branch on 30.01.2013.  The Opposite Parties sent email on 30.1.2013 to the complainant by confirming the tour for four persons namely 1. Thiagarajan Nagappan, 2. Comady thiagarajan, 3. Ms. Havashni Thiagarajan and 4. Ms. Sailia Thiagarajan and the third OP asked the complainant to send documents for applying and getting UK and Schengen Visas, accordingly, the complainant forwarded entire documents to the Opposite Parties for the above said four persons and also the complainant booked train ticket on 12.03.2013 for four persons for travelling from Paris to London and paid Rs.12,800/- which is non-refundable and also the complainant received UK Visa for himself and his family members.  After receipt of confirmation letter from the Opposite Parties and after receipt of VISA the complainant sent earlier on 13.5.2013 his wife, second daughter to France to see her parents and relatives who are living at France.  The complainant further stated that on 13.5.2013 and on 18.05.2013, he contacted the second Opposite Party over phone and sent email to one Karthick, Travel Counselor at Chennai Branch to confirm the balance amount yet to be paid and also to provide the travelling details, but no response from him and also on 27.05.20013 he contacted over phone to the said Karthick and sent email to him and its copy were sent to all the opposite parties to confirm the balance amount yet to be paid and to provide the travel details, but, there was no response.  All of a sudden, on 29.05.2014 i.e. 14 days prior to departure, the OP2 sent an email stating that the "tour cancelled" due to "Low Head Count" without any alternative arrangement to fulfil the opposite party's terms and conditions as laid in the Booking Form.  Due to which, the complainant and his family members suffered great mental agony, shock and inconvenience.  On 30.05.2013 the complainant approached the other Tour Agents M/s Suruchi Tours and Travels through Thomas Cook (India) Ltd., by spending several lakh of rupees and he paid Rs.4,88,828/- and the complainant and his family members completed the tour programme.  The complainant further stated that once the tour was cancelled, the opposites should return the entire money.  The complainant issued a lawyer notice on 14.09.2013 to the opposite parties to come forward to settle the amount as claimed in the notice, but the opposite parties gave only evasive and false replies and they have paid only a sum of Rs.1,37,132/- as a full and final settlement of all claims with respect to the subject mentioned tour by way of cheque No. 645249 dated 1.11.2013.  Since the opposite parties have cheated the complainant by playing fraud, committed malpractice which amounts to deficiency in service.  Hence, this complaint. 

          3. The OP No.1 and 3 remained absent and set ex parte.

4.       The following are the averments narrated in the reply version filed by the Opposite Party No. 2:

          This Opposite Party stated that he filed this reply version on behalf of all the Opposite Parties.  It is stated by this Opposite Party that the complaint is not maintainable since there is no any fault, imperfection, short-coming or inadequacy in the quality, nature and manner of performance on the side of opposite parties.  This opposite party admits the complainant booked a South Indian Special European Spice with them.  Since the booking was done at Pondicherry, this Forum has jurisdiction, however, this Opposite Party has its Registered Office at Mumbai from where it carries on business and all the travel arrangements are contracted for and monitored from the said place and therefore,  the District Forum at Mumbai also has jurisdiction to entertain and try this complaint.  Further, it is stated by this OP that when more than one court has jurisdiction to entertain a cause of action and the parties by exclusion clause in a contract have chosen to vest jurisdiction to one particular court or forum, such clause would be valid and binding upon the parties.  In the present case, the parties have conferred jurisdciton to entertain any try any matter relating to the tours at Mumbai alone.  Further, as per terms and conditions,  the parties had specifically agreed that for all claims, disputes of whatsoever nature relating to the Tour markets / coordinated by Kuoni Travel (India) Pvt. Ltd., the Courts, forums and tribunals in Mumbai, India alone shall have exclusive jurisdiction.   Under the above circumstances, this Forum has no jurisdiction to entertain this complaint and prayed for dismissal of the complaint. 

          This OP further stated that the complainant was patiently explained by OP No.3 about the various tour details as well as terms and conditions and the complainant after reading, understanding, accepting and signing the booking form and paying the amount agreed to the OPs terms and conditions and were bound by them.  The complainant did not inform the Opposite Part in advance that the main purpose of travelling abroad was not a package tour, but to visit friends and family abroad and it is an "add on" for which the Opposite Parties cannot held responsible.  Further, as per booking terms and conditions, the tour may be cancelled due to low head count.  The books terms states that "Tour specified in the brochure are subject in minimum participation of paying participant.  If the participant is below the minimum prescribed, the company reserves the right to amend, amalgamate, alter, vary or cancel a tour without incurring any liability to pay any compensation.  The complainant also aware of the same and after read, understood and signed the Booking Form.  It is further stated by the Opposite Party that due to low participation, the particular departure was not operated.  The complainant could have opted for alternative departure or slightly amended itinerary.  However, since part of the complainant's family had already travelled abroad, the complainant could not avail or alter the optional tours given to the complainant.  Hence, it is clear that the complainant's tour was only an add or and not the real purpose to travel to Europe.  Further, when the Opposite Parties were arranging alternative tour, the complainant had already taken a different package from some other tour operator since their motive was to visit their family at any cost.  This Opposite Party further stated that they have requested the complainant to take a refund of tour amount after deducting the applicable visa charges since the visas were indeed obtained by the Opposite Parties on behalf of the complainant, but the complainant did not come forward to accept the amount.   Since there is no malpractice, fraud and deficiency of service the Opposite Parties are not liable to pay any compensation to the complainant and prayed for dismissal of the complaint. 

4.       Points for determination are:

1. Whether this Forum has jurisdiction to entertain this complaint?

          2. Whether the complainant is a Consumer?

          3. Whether any deficiency in service attributed by the Opposite Parties?

          4. To what relief, the complainant is entitled for?

          Point No.1:

          It is the main allegation of the Opposite Parties that even though the complainant has booked the South Indian Special European Spice tour package with the Opposite Parties, the travel arrangements like hotel bookings, sightseeing, air tickets etc. were contracted, monitored, booked from Mumbai and therefore, the District Consumer Disputes Redressal Forum (Mumbai) alone is having jurisdiction to entertain the present case.  Further in the terms and conditions mentioned in Booking Form Ex.C3 also reveal that if there is any complaints with regard to service etc. the original jurisdiction would be at Mumbai only.  Hence, the Opposite Parties alleged that the complaint is to be dismissed on the above ground.  To fortify their contentions, they have relied upon the judgment reported in (1989) 2 SCC 163 [A.B.C. Laminart Pvt Ltd., and another vs A.P. Agencies, Salem]. 

          We have perused the entire records, the complaint, reply version of Opposite Party, Exs. C1 to C13, evidence of complainant and the written arguments of the complainant.  On perusal of Ex.C1 the copy of publication : The Times of India, Chennai Edition, it reveals that the Opposite Parties conducted a Tour Package to Europe.  The Ex.C2 copy of Cost per adult on Twin Sharing Basis given by Third Opposite Party, Ex.C3 Copy of Booking Form issued by third OP, all clearly establish that the complainant had approached only the third OP and entered into an agreement with the third Opposite Party vide Ex.C3 and the same were held between the complainant and the third OP who is none other than the agent of OP1.  Further, Section 11 (2) of the Consumer Protection Act 1986 clearly envisage that

          "A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction:

          (a) the opposite party or each of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carried on business or has a branch office or personally works for gain.

In the present case, even though the terms and conditions of Booking Form Ex.C3 states that the complaints if any shall be made at Mumbai, the complainant entered into an agreement with the OP3 at Pondicherry and all the payments were made at Pondicherry Office only and therefore, the condition clause mentioned in the Ex.C3 about jurisdiction, will not affect this Forum to entertain this case.  The clause relating to jurisdiction of court in the Ex.C3 the agreement between the parties cannot by itself over-ride the statutory right of the complainant conferred by the provision of the Consumer Protection Act that would defeat the purpose and object of the Act.   The above principle was also emphasized by the Hon'ble National Consumer Disputes Redressal Commission in "NEHA SINGHAL vs M/S UNITECH LIMITED".  Hence, this point is decided that this Forum has jurisdiction to entertain the complaint and this issue is answered accordingly.

5.       Point No.2:

          The complainant booked the tour package with OP3 at Pondicherry vide Ex.C1 for a tour called "South Indian Special European Spice".  Thus, the complainant is the beneficiary of the service rendered by the Opposite Parties.  Hence, the complainant is the consumer of the Opposite Parties.

6.       Point No.3:

          The complainant submitted that on seeing the advertisement in Times of India Education made by the Opposite Parties, the complainant approached the OP3 and offered to join in the tour "South Indian Special European Spice" at London and also agreed and accepted for the same at Rs.1,15,177/- per head vide Ex.C2 after deducting the flight charges from India to London and vice versa and paid an advance amount of Rs.1,66,000/- for himself and his wife and two daughters vide Ex.C3 Booking Form by way of cheque.  The Opposite parties issued instructions for the tour programme and Booking terms and conditions and also the opposite parties sent Ex.C4 email on 30.01.2013 to the complainant by confirming tour with the Booking confirmation details with passengers; name etc. and called for the complainant to send the documents for applying and getting UK and Schengen Visas to them and the same were also forwarded by the complainant to the Opposite Parties.  The complainant further submitted that on receipt of Booking confirmation from Opposite Parties, the complainant booked train ticket on 12.03.2013 for travelling from Paris to London to join in the above said Tour at London to Europe  and paid a sum of Rs.12,800/- vide Ex.C5.   It is alleged by the complainant that soon after receipt of Visa TOPPS Form from the Second Opposite Party vide Ex.C6, he sent his wife and second daughter to France for seeing her parents and relatives who are living at France.  While the things being so, on 13.5.2013, 18.05.2013 and 27.05.2013 vide Ex.C7 series the complainant contacted the second OP over phone and also sent email to them to confirm the balance amount yet to be paid and to provide the travel details, there was no response from the Opposite Parties.  However, on 29.05.2010 the OP2 addressed an email stating that "As of now your departure is canceled because of Low Head Count" vide Ex.C8.  Soon after receipt of Ex.C8, the complainant sent an email to the opposite parties for the delayed information and opted to seek remedy through Consumer Court.  The said email is marked as Ex.C9.  The complainant further alleged that since his wife and his second daughter were already sent to France to join in the above said tour on the alleged date of departure, he been left with no other option approached the other Tour Agent M/s Suruchi Tours and Travels through Thomas Cook (India) Ltd.,  and paid a sum of Rs.4,88,828/- vide Ex.C10 and also paid extra charges for Train tickets from Paris to London for four members vide Ex.C11.  It is further alleged by the complainant that many times he requested the Opposite Party to return the advance amount paid, since there was no response from the Opposite party, the complainant issued a legal notice Ex.C12  and the same was acknowledged by the opposite Parties and sent reply Ex.C13. 

 It is admitted by the Opposite Parties that the complainant booked a South Indian Special European Spice tour package with them.  The Opposite Parties submitted that this Forum has no jurisdiction since entire travel arrangements made at Mumbai and as per the terms and conditions mentioned in Booking Form Ex.C3, the original jurisdiction for any complaint is at Mumbai, this Forum has no jurisdiction to entertain this complaint.  It is further submitted by the OP that the complainant did not inform them in advance that the main purpose of travelling abroad was not a package tour, but to visit friends and family abroad for which the OPs are not responsible and it is merely an "add on".  It is alleged by the Opposite Parties that the tour specified in the brochure are subject to minimum participation of paying participant.  If the participant is below the minimum prescribed, the company reserves the right to amend, amalgamate, alter, vary or cancel a tour without incurring any liability to pay any compensation.  Further, it is alleged by the OPs that they are not held responsible for the alleged tour made by the complainant with other Tour Agent and also submitted that since there is no malpractice, fraud and deficiency of service, the opposite parties are not liable to pay compensation to the complainant.    

          9. From the above facts and material, we ascertained that the complainant has booked a tour package with the Opposite Party No.3 who is none other than the agent of OP1 who is having office at Pondicherry who works for gain.   On coming to the next point of negligence and deficiency in service, this Forum has carefully perused the documents filed by the complainant.  On going through the Exs.C2 and C3 the Booking Form, the complainant has booked for a tour from London to Europe for himself, his wife and his two daughters and also paid an advance amount of Rs.1,66,000/- with the OP3 on 23.01.2013.  On receipt of Ex.C4, the email from Opposite Parties, the complainant sent documents for four persons for getting Visas and then to join in the tour arranged by the Opposite Parties at London.  The complainant reserved train tickets of Rs.12,800/- for four members for travelling from Paris to London to enable them to join with the OPs vide Ex.C5.   To the surprise, the complainant received an email on 29.05.2013 vide Ex.C8 from Opposite Party stating that the departure is cancelled because of Low Head Count.  Since the complainant had made all arrangements to join in the tour at London, he was forced to approach another agent and arranged for their tour as scheduled. 

          It is pertinent to mention here that the complainant alone let in evidence and he was partly cross examined by the Opposite Parties.  Though the Opposite Parties filed their counter, they have not come forward to let in evidence to establish their case.  The Opposite Party Nos. 1 and 3 were remained absent and set ex parte.  It is clear from the above discussion that the opposite parties have failed to arrange for the alleged package tour as agreed or to make alternate arrangements for performing the journey.  The Opposite Parties even failed to return the full advance amount to the complainant.  Since the Opposite Parties themselves cancelled the tour, the plea taken by the Opposite Parties that as per the terms and conditions, the amount once paid not to be refunded is not acceptable.   Further, retaining the amount paid by the complainant without rendering any service by the Opposite Parties  is unfair and deficiency in service.    This point is also answered in favour of the complainant and the complainant is entitled for the relief of refund of balance advance amount, train fare paid vide Ex.C5 and compensation.

            Point No.4:

          In view of the decision arrived in point No.3, the opposite parties are directed to:

1. Return the balance advance amount of Rs.28,868/- to the complainant.
2. Pay the train fare of Rs.12,800/- paid for travelling from Paris to London.
3.  Pay a sum of Rs.20,000/-  being compensation for the loss and injuries suffered by the complainant.
4. pay the cost of Rs.5,000/- towards litigation charges.    

The order should be complied within two months from the date of receipt of this order.  

Dated this the 5^th day of November  2015.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW1           03.09.2014           Thiagarajan Nagappan

OPPOSITE PARTY'S WITNESS:  NIL

COMPLAINANT'S EXHIBITS MARKED ON CONSENT

OPPOSITE PARTY'S EXHIBITS MARKED: NIL

( A. ASOKAN )

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

MEMBER