Tamil Nadu

South Chennai

CC/303/2015

Dr.Thota Ramadass - Complainant(s)

Versus

M/s.Thirun Travel Marketing - Opp.Party(s)

M/s.Swaminathan

09 Dec 2019

ORDER

                                                                               Date of filing      : 07.08.2015

                                                                               Date of Disposal : 09.12.2019

                                                                                  

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.303/2015

DATED THIS MONDAY THE 09^TH DAY OF DECEMBER 2019

                                 

Dr. Thota Ramadass,

S/o. Mr. Dhanapathi Rao,

No.29, Ambrosia Apartments,

Pycrofts Garden Road,

Nungambakkam,

Chennai – 600 006.                                                        .. Complainant.

                                                                                                 ..Versus..

 

TIRUN TRAVEL MARKETING,

M-003, Prince Centre,

No.709/710, Anna Salai,

Pathari Road,

Chennai – 600 006.                                                    ..  Opposite party.

 

Counsel for the complainant      : M/s. M. Swaminathan & another

Counsel for the opposite party  : M/s. Sundar Narayan

 

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.1,25,000/- being Cruise Amount and to pay a sum of Rs.3,00,000/- towards compensation for mental agony, hardship, harassment and damage of reputation to the complainant.

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

The complainant submits that during the month of September 2013, the complainant along with other Doctors registered for attending American Academy of head and neck surgery, International Conference at Vancouver during 29.09.2013 to 01.10.2013. The complainant along with other Doctors booked in a star cruise trip from Vancouver to Alaska.   The complainant contacted Tirun Travel marketing agency for booking the tickets for 15 days holiday trip and paid USD 2284.69 towards travel, registration, hotel etc.  The complainant submits that for carrying out travel and travel insurance purposes, the complainant undergone medical check up in Apollo Hospital wherein, the complainant is working.  The Doctors deducted that the complainant is suffering from pulmonary hypertension and mild hypertension, diabetic and cardiologist who examined him had opined that he is unfit for travelling.  Hence, the complainant was compelled to cancel the trip.  The complainant contacted the opposite party, tour travel agency to cancel his trip on medical condition and requested to refund the cruise trip charges collected by the opposite party. Accordingly, the ticket was cancelled, hotel stay and registration was also cancelled.  But the opposite party failed to refund the amount collected towards ticket.  After several reminders, the opposite party declined the complainant’s claim for refund and also to address the issue with Royal Caribbean Cruise.  The Assist card and Royal Caribbean cruise advised that the complainant will be able to utilize 75% of the total amount paid in any future cruise in contemplating.  The complainant further submits that under the Head Travel Documents annexed to the Guest ticket Booklet of Celebrity Cruises, it is clearly mentioned in the Sub-Heading Inoculation / Health that all guests must ensure that they are fit for travel atleast 4 to 6 weeks prior to sail.   Once the tickets are cancelled for a valid reason sufficiently in advance, the complainant is entitled to get full refund of the cruise charges.   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.

2.      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 is that the complaint is not maintainable against this opposite party since it is an agent of the disclosed principal, the Celebrity Cruises Inc. will not be liable for the contracts entered into by its principal.   The opposite party states that the complainant entered into a contract with the Celebrity Cruises Inc.   The opposite party states that the complainant is well aware at the time of booking the ticket on the cruise liner that the cancellation policy of Celebrity Cruises Inc, one of the subsidiaries of the Royal Caribbean Cruises Ltd. of which the opposite party was the India Representative would not be entitled to any refund for a cancellation effected 5 days prior to the trip.   The opposite party states that the cancellation prior to sailing or the first day of the cruise tour are limited by the terms of the carrier’s refund policy.   The opposite party states that the opposite party had provided every possible help and service to the complainant by facilitating and liasoning with Assist Card, to alleviate the grievances of the complainant.  However, despite a protracted exchange in correspondence with Assist Card for refund of the cruise liner charges, where the complainant delayed in providing the documentation necessary to process his claim, Assist Card declined the claim presumably on the ground that the product purchased by the complainant with Assist Card did not cover pre-existing illness.    Assist card also made it very clear that they were not honouring the claim as the complainant had purchased a Travel Assistance Plan which did not cover Trip cancellation guaranty for any reason or trip interruption.   Despite knowing that he was not entitled to a refund of the cruise charges from the opposite party given that he cancelled the trip 5 days prior to journey.  Therefore, there is no deficiency in service on the part of the opposite party. The complaint therefore ought to be dismissed for mis-joinder of parties and non-joinder of necessary parties.

3.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A8 are marked.  Proof affidavit of the opposite party is filed and documents Ex.B1 to Ex.B26 are marked on the side of the opposite party.

4.      The points for consideration is:-

1. Whether the complainant is entitled to the Cruise charges of Rs.1,25,000/- (USD 2284.69) as prayed for?
2. Whether the complainant is entitled to a sum of Rs.3,00,000/-  towards compensation for mental agony, hardship, reputation and deficiency in service as prayed for with cost?

5.      On point:-

Both parties filed their respective written arguments.   Heard their respective Counsels also. Perused the records namely; the complaint, written version, proof affidavits and documents.   The complainant pleaded and contended that during the month of September 2013, the complainant along with other Doctors registered for attending American Academy of head and neck surgery, International Conference at Vancouver during 29.09.2013 to 01.10.2013.   The complainant along with other Doctors booked in a star cruise trip from Vancouver to Alaska.   The complainant contacted Tirun Travel marketing agency for booking the tickets for 15 days holiday trip and paid USD 2284.69 towards travel, registration, hotel etc as per Ex.A1 & Ex.A2.  Further the contention of the complainant is that for carrying out travel and travel insurance purposes, the complainant undergone medical check up in Apollo Hospital wherein, the complainant is working.  The Doctors detected that the complainant is suffering from moderate pulmonary hypertension and mild valular Regurgitation, Diabetic and cardiologist examined him and opined that he is unfit for travelling as per Ex.A7(S).  Hence, the complainant was compelled to cancel the trip.  The complainant contacted the opposite party, tour travel agency to cancel his trip on medical condition and requested to refund the cruise trip charges collected by the opposite party.   Accordingly, the ticket was cancelled, hotel stay and registration was cancelled.  But the opposite party miserably failed to refund the amount collected towards ticket.  As per Ex.B7, tour itinerary, cancellation is permitted and 25% of the amount will be deducted towards service charges and the USD will be calculated on the date of cancellation and the cheque will be issued for the balance amount.  But the opposite party has not paid any amount.   Evenafter repeated requests and demands, the opposite party has not returned the amount.  But raised wild allegations against the transactions that is to say the opposite party is an agent of the disclosed principal and the cruises cannot be held liable for the contracts entered into by its principal and the complainant shall claim amount only from the principal.  Equally, the complainant miserably failed to implead Celebrity X Cruises as a party.  Thereby, this case is barred for non-joinder of necessary party.   But on a careful perusal of records, it is very clear that the opposite party is a travel agency made all arrangements after collecting the amount.  Equally, the opposite party has not given any details regarding the Cruise and the active part of it proves deficiency in service.

6.     The contention of the opposite party is that the complaint is not maintainable against this opposite party since it is an agent of the disclosed principal, the Celebrity Cruises Inc. will not be liable for the contracts entered into by its principal.   But the opposite party has not given any of the details regarding the Celebrity Cruises Inc.  Equally the role of the Celebrity Cruises Inc also not given.  On the other hand, all the arrangements were made by the opposite party after collecting the amount from the complainant is not denied.   Further the contention of the opposite party is that the complainant entered into a contract with the Celebrity Cruises Inc.   But no document filed.   Further the contention of the opposite party is that the complainant is well aware at the time of booking the ticket on the cruise liner that the cancellation policy of Celebrity Cruises Inc, one of the subsidiaries of the Royal Caribbean Cruises Ltd. of which the opposite party was the India Representative would not be entitled to any refund for a cancellation effected 5 days prior to the trip.  But in the Instruction and Services Assist Card, Ex.B7 it reads as follows:

A. INSTRUCTIONS FOR THE PROPER USE OF THE ASSIST-CARD SERVICES

A.1. BEFORE THE TRIP

A. 1.2. TRIP CANCELLATION

“In case the product you purchased includes the GUARANTY OF TRIP CANCELLATION OR INTERRUPTION and you must cancel the trip due to the circumstances described in Clauses D.4 or D.5, inform this fact, peremptorily and within the 24 hours of its occurrence (under sanction of loss of this Guaranty), to the ASSIST-CARD office in the country of issuance of the card or in the country you are at that moment and proceed according to what is established in Clauses D.4 or D.5 ASSIST-CARD will then proceed to verify the informed event through its Medical Department”.

7.     Further the contention of the opposite party is that the cancellation prior to sailing or the first day of the cruise tour are limited by the terms of the carrier’s refund policy.  But in this case, the complainant requested for cancellation of ticket after due medical check up and report stated that unfit for travelling.   Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite party shall refund the Cruise charges of Rs.1,25,000/- which is equalent to USD 2284.69 and to pay a sum of Rs.30,000/- towards compensation for mental agony with cost of Rs.10,000/- to the complainant.

In the result, this complaint is allowed in part.   The opposite party is directed to refund the Cruise charges of Rs.1,25,000/- (Rupees One lakh twenty five thousand only) which is equalent to USD 2284.69 and to pay a sum of Rs.30,000/- (Rupees Thirty thousand only) towards compensation for mental agony with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainant.  

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

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 09^th day of December 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

		Copy of the Guest Tickets Booklet
	06.06.2013 & 10.07.2013	Copy of bills
		Copy of passport of the complainant
		Original copy of the e-mail confirmation of the cruise booking
		Original copy of the e-mail sent by the complainant to the opposite party
		Copy of reply from the opposite party
		Copy of Medical Certificate of the complainant
		Copy of notice issued to the opposite party

 

OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B1		Copy of Brochure issued along with ticket by Celebrity Cruises Inc.
Ex.B2	06.06.2013	Copy of record of transaction covering Cruise Charges, Port Charges, taxes etc
Ex.B3	07.06.2013	Copy of e-mail confirmation sent to the complainant
Ex.B4	10.07.2013	Copy of record of transaction
Ex.B5	10.07.2013	Copy of booking confirmation handed over to the complainant and Credit Card Authorization Form with voucher
Ex.B6	24.08.2013	Copy of Guest Ticket issued by Celebrity Cruises Inc
Ex.B7		Copy of general terms and conditions of insurance offered by Assist Card with Summary of Benefits
Ex.B8		Copy of Assist Card Insurance taken out by the complainant
Ex.B9	10.09.2013	Copy of e-mail from the complainant to opposite party
Ex.B10	11.09.2013	Copy of e-mail from the complainant to Assist Card
Ex.B11	16.11.2013	Copy of email from Assist Card to the complainant forwarded to opposite party
Ex.B12		Copy of confirmation of cancellation of reservation along with screenshot of cancellation effected
Ex.B13	27.11.2013	Copy of e-mail from the complainant to Assist Card
Ex.B14	05.12.2013	Copy of e-mail from the opposite party to Assist Card
Ex.B15	05.12.2013	Copy of e-mail from Assist Card to the opposite party
Ex.B16	31.01.2014	Copy of e-mail from the complainant to Assist Card and reply from Assist Card
Ex.B17	18.02.2014	Copy of emails from the complainant to Assist Card
Ex.B18	20.03.2014	Copy of email from Assist Card to the complainant
Ex.B19	25.03.2014	Copy of emails by the complainant to Assist Card
Ex.B20	16.04.2014	Copy of e-mail from Assist Card to the complainant
Ex.B21	23.04.2014	Copy of e-mail from the opposite party to complainant
Ex.B22	23.04.2014	Copy of email from the complainant to opposite party
Ex.B23	09.05.2014	Copy of email from the complainant to Assist card
Ex.B24	05.06.2014	Copy of email from the complainant to Assist card
Ex.B25	10.06.2014	Copy of emails from Assist Card to the complainant
Ex.B26	10.06.2014	Copy of email from the complainant to Assist card

 

 

 

MEMBER                                                                                                                                                                      PRESIDENT