BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  :  MEMBER

C.C. No. 373/2012 Filed on 18.10.2012

ORDER DATED: 15.12.2016

Complainant:

Sowmini Mathew, W/o Shojimon Mathew, Staff Quarters No. 105, NIIST (CSIR), Industrial Estate P.O, Pappanamcode, Thiruvananthapuram.

                               (By Adv. Anithas Jacob)                                             

Opposite party:

Orizon Holidays Pvt. Ltd., represented by its Managing Director, Biju Pottekad, A 69, Elankom Gardens, Vellayambalam, Thiruvananthapuram-695 010.

                             (By Adv. L.S. Renjith)

This case having been heard on 19.10.2016, the Forum on 15.12.2016 delivered the following:

ORDER

SRI. P. SUDHIR:  PRESIDENT

Complainant’s case is that the complainant is working as Technical Officer, National Institute of Interdisciplinary Science and Technology, Thiruvananthapuram and her husband Sri Shojimon Mathew is working as Manager (Accounts) in State Bank of Travancode, Pune Branch.  The complainant’s husband booked for an Europe tour with the opposite party for himself and his family consisting of the complainant and two daughters, under the four years block tour package sanctioned by State Bank of Travancore.  The trip was scheduled to be depart from Pune on 19.07.2012 and return back on 27.07.2012.  For this purpose State bank of Travancore sanctioned leave with fair concession for 14 days from 17.07.2012 to 30.07.2012 and eligibility limit was Rs. 2,80,000/- as leave travel concession.  The complainant’s husband being availed of four year block plan and last trip was on 27.07.2008 hence he should avail the leave travel concession on or before 26.07.2012.  This fact was already informed to the opposite party early in the month of April 2012 itself.  Thus the opposite party arranged a trip from 19.07.2012 to 27.07.2012.  For the purpose of the journey the complainant and her daughters travelled from Thiruvananthapuram to Pune by flight spending around Rs. 25,000/- and thereafter joining with her husband the complainant started the trip and reached Delhi on 19.07.2012.  From there they had gone to Jammu Kashmir along with a group of persons consisting of 47 members, as per itinerary.  On 20.07.2012 complainant reached Jammu Kashmir, then the opposite party informed the complainant and her family that the visa for the family was not available on 21.07.2012, which was the date of departure from Delhi to Europe and will be ready only on 23.07.2012.  The complainant became shocked.  Then the complainant approached a Member of Parliament who is known to her, for getting the visa on or before 21.07.2012 and he asked for the reference number of the visa application and assured that the same could be arranged if the reference number of visa is available.  When the complainant asked for the reference number, the opposite party simply given the reply that when he approached the Embassy for getting visa, they informed that the same will be available on 23.07.2012.  With very sorrow, the complainant understood that the opposite party didn’t submit the visa application before the Embassy.  The complainant and her family became trapped into another big shock.  Due to the deficiency in service of the opposite party complainant’s trip to Europe was cancelled.  Thus the complainant and her family suffered a lot of distress and loss money and time.  The complainant who is working as technical officer in National Institute for Interdisciplinary Science and Technology had obtained the leave for these days by availing special sanctions.  Moreover the complainant and her family very much enthusiastic at the trip and they lost all their pleasure and suffered huge mental agony.  The complainant’s husband also lost the leave travel concession amounting to Rs. 2,80,000/- from the bank and that trip facility could not be availed further in that block and also faced lot of mental agony, inconvenience and financial loss during these days due to the deficiency in service and unfair trade practice on the part of opposite party.  Due to the irresponsible behavior and deficiency of service of the opposite party, the complainant and her family had faced a lot of mental agony, inconveniences and disappointment due to the irresponsible attitude of the opposite party.  The complainant is entitled to get Rs. 2,80,000/- the leave travel concession sanctioned by State Bank of Travancore to the complainant’s husband and Rs. 1,00,000/- spent by the complainant in connection with the trip and Rs. 5,00,000/- as a compensation for mental agony and inconveniences caused to the complainant and his family and complainant approached this Forum for the said relief. 

Notice sent to opposite party.  Opposite party appeared and contested the case.  The case of the opposite party in the version is that the complaint is not maintainable either under law or on facts.  Neither the complainant nor her husband has booked any European tour with the opposite party.  All the facts stated in this para shall be put to strict proof.  The real fact is that the complainant booked four tickets for Delhi-Singapore-Hongkong-Singapore-Thiruvananthapuram dated 19.07.2012.  But the same was cancelled by the complainant for reasons better known to her.  The complainant availed four tickets dated 19.07.2012 from Pune to Delhi amounting to Rs. 31,764/- and another four tickets dated 20.07.2012 from Delhi to Thiruvananthapuram amounting to Rs. 40,920/-.  The above said airfares are still due from the complainant to the opposite party.  Furthermore the complainant accompanied the opposite party’s team to Jammu Kashmir from Delhi and returned to Delhi at the expense of the opposite party.  This expense also has not been paid back by the complainant.  The complainant didn’t book any European tour with the opposite party.  She has booked a trip to Hongkong via Singapore from Delhi dated 19.07.2012.  But the same was cancelled by the complainant for reasons unknown to the opposite party.  This opposite party has suffered a loss of Rs. 54,140/- due to this act of the complainant.  The above stated amount has not been paid back by the complainant so far.  There is absolutely no deficiency of service on the part of the opposite party by virtue of which the complainant has sustained any loss.  It is to be noted that it is in order to avoid the payment of the above stated amounts, which are due to the opposite party from the complainant, that this complaint is filed.  No loss or deficiency of service has been caused to the complainant by the opposite party.  The complaint is based on false and frivolous contentions solely to abuse the process of law and to harass this opposite party with some ulterior motives better known to the complainant.  The complainant is not entitled to get any amount.  No cause of action has arisen for filing this complaint.  The complainant is not entitled to get any reliefs as prayed for in the complaint.   

Issues:

1. Whether there is deficiency of service on the part of opposite party?
2. Whether the complainant is entitled for the reliefs sought for?

Issues (i) & (ii):- Complainant filed chief examination affidavit through power of attorney agent and Exts. P1 to P12 marked.  Complainant cross examined by opposite party.  Opposite party filed chief examination affidavit and not marked the documents.  For the convenience this Forum suo moto marked the documents of opposite party as Exts. D1 to D3.  Opposite party not cross examined by complainant.  Heard both sides.  The argument put forward by complainant is that the opposite party had contented in his version that the “complainant nor her husband had booked any European Tour with this opposite party’.  The copy of tour booking certificate dated 27.06.2012 is sufficient to deny the contention of the opposite party.  As a responsible employee, the complainant and their family produced the certificates from their departments including the children from their schools.  It is evident from these records that the complainant and family are travelling to Europe.  The opposite party in their cross examination suggested a question that there are air fares due to the complainant.  In order to escape from the payment, the complainant filed the present case.  But so far they had not produced any evidence that it was so due.  Nor even take any steps to recover those dues.  At the time of cross examination of PW1, the counsel for the opposite party put a question that “whether any document is produced for proving the registration of the Europe tour package”…. The complainant answered ‘not produced’.  It was mistakenly deposed by the complainant.  But he had already produced the said document and it is marked as Ext. P6 which itself answers the question.  It is the copy of tour booking certificate dated 27.06.2012.  It was issued in the letter head of the opposite party which produced.  The opposite party did not submit the Visa Application before the Embassy in time caused the difficulties for the complainant and her family.  When it was enquired directly to the opposite party, they did not give a satisfactory reply.  The reference number of the Visa application was also not informed to the complainant at that time.  There was lack of deficiency in service.  Thereby the Europe tour package was cancelled.  The complainant was ashamed of in front of their relatives, friends and co-workers.  All of them in the society asked about the Europe Tour made much mental agony to the complainant and his family even to the children.  The teachers in the class were also enquired about this to the children of the complainant.  So the mental agony for the complainant and his family is enormous.  The opposite party himself is liable for all these difficulties.  The complainant lost the LFC facility for that block which could not be claimed further or make travel since the period is lapsed.  Now, the bank has withdrawn the foreign trip facility availed by the employees through LFC.  Thus the opportunity of the complainant and family to visit Europe is lost and further journey could not be fulfilled by the complainant from his own earnings.  Thus, a golden opportunity to visit the Europe is lost to complainant due to the negligent act and deficiency in service on the part of the opposite party.  Perused the documents and deposition.  The argument put forward by opposite party is that the primary fact that has to be proved by the complainant is that he has booked a European trip with the opposite party.  The contention raised by the complainant that Ext. P6 would show that the European tour was booked with the opposite party is not correct.  Ext. P6 is not a document issued to the deponent confirming his booking of European tour.  The document shows that it is only a communication addressed to the Visa Officer.  This is only a routine procedure adopted for allotment of Visa.  This has been done at the request of the complainant to ascertain the availability of visa.  From that point of time itself the complainant was aware of the fact that the visa and the air tickets are not confirmed.  At the time of cross examination he categorically deposed that no document showing that he has booked any European tour has been produced.  During cross examination the deponent has answered thus “ഇത്തരത്തില്‍ tour book ചെയ്തു എന്ന്‍ കാണിക്കാന്‍ എന്ത് രേഖയാണ് കോടതിയി ല്‍ ഹാജരാക്കിയിട്ടുള്ളത് (Q)” ഹാജരാക്കിയിട്ടില്ല (A).  If at all this was a mistake made on his part, then the same would have been rectified by way of re-examination.  Since this has not been done, the contention contrary to his deposition will not stand in the eye of law.  Further he goes on to depose that Ext. P6 is the letter given to the Visa Officer.  When Ext. P6 was shown to the deponent, he answered thus: “ഇതു Visa Officer-നു കൊടുത്ത കത്താണ്”.  From this alone it can be confirmed that Ext. P6 is not a tour booking certificate issued by the opposite party to the complainant but only a letter issued to the visa officer.  Ext. P3 produced by the complainant is self speaking by itself.  The document states that the leave travel concession sanctioned to the deponent can be availed by him at any time during the Calendar year 2012.  This shows that the contention raised by the complainant that the leave travel concession should have been availed before 26.07.2012 is absolutely false.  On cross examination the deponent stated thus: “26.07.2012-നു മുമ്പ് LFC avail ചെയ്തില്ലെങ്കില്‍ cancel ആകും എന്ന്‍ ഏതു രേഖയി ല്‍ പറയുന്നു (Q) Visa യുടെ application-നു ഭാഗമായി issue ചെയ്ത certificate പ്രകാരം i.e Ext. P3 (A).  Ext. P3 shown: “ഇതില്‍ എവിടെ പറഞ്ഞിരിക്കുന്നു (Q) Cancel ആകും എന്ന്‍ ഈ രേഖയി ല്‍ പറഞ്ഞിട്ടില്ല (A)” Thus Ext. P3 and the above deposition reveals the fact that the deponent had an option to avail the LFC before the end of 2012.  The opposite party has never persuaded them to travel to Pune.  It was a decision taken by the complainant’s family. There from they persuaded the opposite party to meet the expenses of their travelling.  Ext. P9, P10, P11 and P12 are travelling details of the complainant’s family from Pune to Delhi and return to Thiruvananthapuram.  Ext. D1 and D2 document produced by the opposite party shows that the opposite party has booked four air tickets from Pune to Delhi dated 19.07.2012 and from Delhi to Thiruvananthapuram dated 20.07.2012 for the complainant’s family.  Ext. D1 shows that the opposite party has incurred an expense of Rs. 31,764/- by way of booking of four air tickets for the complainant’s family from Pune to Delhi dated 19.07.2012.  Ext. D2 would show that the opposite party has incurred an expense of Rs. 40,920/- by way of booking of four air tickets for the complainant’s family from Delhi to Thiruvananthapuram.  Ext. D3 would prove the fact that the complainant has booked four tickets for Delhi-Singapore-Hongkong-Singapore-Thiruvananthapuram dated 19.07.2012 for an amount of Rs. 1,44,140/- for the complainant’s family.  The document would further show that the same has been cancelled at the instance of the complainant.  After cancellation only an amount of Rs. 90,000/- was credited back to the opposite party’s account.  Thus it can be seen from Ext. D3 that the opposite party has suffered a loss of Rs. 54,140/-, on that account alone, due to the irresponsible act of the complainant.  Thus the documents produced by the opposite party would show that the complainant owes amounts of Rs. 31,764/-, Rs. 40,920/-, Rs. 54,140/- amounting to a total tune of Rs. 1,26,824/- together with interest, to the opposite party and this fact has been reiterated by the deponent upon his cross examination.  Upon cross examination of the deponent, he has never denied the fact that he owes the aforesaid amounts to the opposite party.  The deponent goes on to state that the expenses stated above has been met by the opposite party.  The deponent has further stated that it is only because the opposite party has not made a claim for the aforesaid amounts that the same has not been paid back.  The deponent upon cross examination states thus: “Pune to Kashmir and Kashmir to Tvpm ഇതിന്‍റെ ചിലവ് ആരാണ് വഹിച്ചത് (Q) O.P (A) ആ ചിലവായ തുക O.P-യ്ക്കു കൊടുത്തിട്ടുണ്ടോ (Q) O.P claim ചെയ്തിട്ടില്ല (A)” The deponent goes on to state that he has already received LFC amounts from the bank.  He deposes thus: “യാത്ര ചെയ്തതിനു ശേഷം ഈ amount ഞാന്‍ bank-ല്‍ നിന്നും claim ചെയ്തിരുന്നു. (A)” This means that the deponent is illegally withholding the amount which he is legally and morally bound to pay to the opposite party, thus making an unlawful financial enrichment.  After making such financial enrichment, the deponent is accusing the opposite party of making loss to him.  The deponent has further stated that he has not paid any amount to the opposite party till date.  The contention that the bank has withdrawn the foreign trip facility has not been proved by the complainant and hence this contention also cannot be accepted.  The veracity of contentions raised and the evidence adduced by the opposite party remains unchallenged since the complainant has not cross examined the opposite party.  The documents produced by the opposite party was not challenged but in fact the facts stated by the opposite party was accepted by the deponent in his cross examination thereby confirming the contentions raised by the opposite party.  Discussing these points we are of the opinion that complaint is devoid of merits and complainant failed to prove that she has booked the trip which is the soul of the complaint.  Hence we are of the opinion that complaint is devoid of any merits and the reliefs prayed for in the complaint are not allowable and the complaint is only to be dismissed.

In the result, complaint is dismissed without cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of December 2016.      

         Sd/-

P.SUDHIR                             : PRESIDENT

         Sd/-

R. SATHI                               : MEMBER

          Sd/-

LIJU B. NAIR                        : MEMBER

jb

C.C. No. 373/2012       

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - Shojimon Mathew

II       COMPLAINANT’S DOCUMENTS:

P1     - Power of Attorney 

P2         - Details of holiday trip to Europe issued by opposite party

P3     - Employment certificate dated 09.06.2012.

P4     - Office Memorandum dated 02.07.2012

P5     - School Certificate dated 26.06.2012

P6     - Copy of tour booking certificate dated 27.06.2012

P7     - Copy of Web eTicket

P8     - Boarding pass (6 Nos.)

P9     - Copy of confirmation

P10   - Boarding pass (4 Nos.)

P11   - Copy of e-mails

P12   - Boarding pass (4 Nos.)

III      OPPOSITE PARTY’S WITNESS:

                             NIL

 IV     OPPOSITE PARTY’S DOCUMENTS:

D1     - Copy of statement showing reservation/cancellation of ticket

D2     - Copy of e-ticket from Pune to Delhi dated 19.07.2012

D3     - Copy of e-ticket from Delhi to Tvpm dated 20.07.2012

                                                                                                      Sd/-

PRESIDENT

jb