PER SHRI. G.H. RATHOD – HON’BLE MEMBER
1) The Complainant by this complaint has prayed that it be held and declare that the Opposite Party is guilty of deficiency in service and unfair trade practices as per the provision of the Consumer Protection Act, 1986 (referred to as the Act). She also prayed to direct the Opposite Party to pay an amount of Rs.30,000/- by way of financial loss suffered by her during the said tour with interest @ 18% thereon from 16/03/2009 till its realization. The Complainant has also prayed to direct the Opposite Party to pay the Complainant a sum of Rs.30,000/- for mental agony, trace and physical hardship suffered by her and Rs.25,000/- towards the legal and the incidental charges incurred by the Complainant.
2) The Complainant submitted that she is the consumer within the meaning of and definition of consumer under Sec.2(1)(d) of the Act and she filed the complaint against the Opposite Party who are guilty of deficiency in services and unfair trade practices. The Opposite Party is a Company duly registered under the provision of Companies Act and is basically indulged in the business of tours and travel in India as well as aboard. The Complainant in the March, 2009 came into the contact with the Opposite Party for going vacation tour alongwith her family members. The Complainant after due discussions with the Opposite Party agreed to get their services for Exotic Far East Bonanza Programme from 16th May, to 25th May, 2009. The Opposite Party promised the Complainant that entire tour programme would be as per the programme list and as per the facility details. It is submitted that however, the Opposite Party as per agreement with the Complainant has miserably failed and neglected to do so. The Complainant alleged that as per the Opposite Party’s demand, the Complainant paid sum of Rs.2,70,000/- through Cheque No.726315, dtd.14/03/09 drawn on Indian Bank, Oshiwara Branch, Mumbai. The Bank statement and copy of certificate issued by Indian Bank showing payment was made by the Complainant to the Opposite Party is marked as Annexure ‘A’.
3) The copy of aforesaid tour programme given by the Opposite Party to the Complainant is marked at Exh.‘B’. When the Complainant received the mail from Opposite Party she was surprised to know that reservation was in waitlisted status of Thai Airways, Flight No. TG 340 dtd.16/05/09 from Mumbai to Bangkok. Thereafter, the Complainant immediately approached to the Opposite Party for the same at the relevant point of time. The Opposite Party’s employee Vikash Bahtt assured the Complainant that the said ticket would be duly confirmed in due course and the Complainant should not worry about the same. The Complainant alleged that though the Opposite Party received entire payment for the said tour from the Complainant before 2 months of the said tour they initially failed and neglected to provide the confirmed air tickets. The Complainant further alleged that she was informed by the Opposite Party if the said ticket would not be confirmed on 15/05/09, the Complainant should postponed her programme from 24/05/09 instead of 16/05/09.
4) The Complainant also submitted that she had already arranged her entire programme and it was not possible for her to change programme in such a short notice, she specifically requested the Opposite Party to arrange the air ticket for the same day so that she can enjoy the tour with entire group and thus, on 16/05/2009, the Complainant was provided air ticket of NACIL Indian Airlines flight IC-928 from Mumbai to Hyderabad having departure time of 4.00 p.m. and connecting flight of Tai Airway TG – 330 from Hyderabad to Bangkok having departure time of 11.15 p.m. Copy of the said air ticket is marked at Exh.‘C’.
5) The complainant stated that due to unprofessional attitude and deficiency of service on the part of Opposite Party the Complainant and her family member were made to face great inconvenience, physical and mental torture and financial losses and required to spent huge money from her own pocket during the waiting period of 6 hours at Hyderabad. The Complainant also stated that due to this she and her family members reached Pattaya by 8.20 a.m. on 17/05/09 and by making great haste they could join the reset of the group within the span of 10 minutes. The Complainant and her family members were in fact not in a position to participate and enjoy the Pattaya leg of the tour, but any how, they participated the same. The Complainant and her family members could not enjoy even at Malaysia tour as the local guide of Malaysia informed that he has not been paid the dues by the Opposite Party in respect of the said tour and handed over the train ticket for Singapore. The Complainant stated that it was the duty of the Opposite Party to make a payment of necessary dues to the said company i.e. Paradise Travels & Tour Sdn. Bhd. whose guide was hired by the Opposite Party. The Complainant further alleged that on 23/05/09 on arrival at Singapore the local tour guide was not present there to receive and escort the Complainant and the entire group. The representative of the Opposite Party also failed and neglected to provide any breakfast and any refreshment due to this reason the Complainant was again made to spent valuable amount from her own pocket despite the fact that it was the boundent duty of the Opposite Party to make all the expenses. Upon making the enquiries by the Complainant, she learnt that the said situation is also ultimate result of non payment of the dues by the Opposite Party to the local travel company Time World Travels at Singapore. Hence, the Complainant and the entire group were made to face a great mental and physical agony and financial losses due to unprofessional and irresponsible attitude and deficiency in services on the part of the Opposite Party. According to the Complainant, she sent a notice on 10/06/2009 to the Opposite Party and communicated all the aforesaid facts and deficiencies in service of the Opposite Party and requested to compensate her. However, the Opposite Party did not pay any heed and bother to reply the said notice/letter. The letter/notice dtd.10/06/09 is marked at Annexure ‘D’. Such type of notice was also sent through her advocate dtd.20/07/2009 and called upon the Opposite Party to make necessary payment of losses which the Complainant had made to face the situation but time and again despite the receipt of the same, the Opposite Party failed and neglected to either reply their said notice or to comply with. The copy of the said notice is marked as Exh.‘E’.
6) Lastly the Complainant stated that instead of enjoying the said trip, the holiday tour have proved a nightmare for Complainant and her family members and all of them suffered mental agony and physical hardship as well as financial losses. The Complainant therefore, prayed for the reliefs in para No.1 of this order.
7) The complaint is admitted by this Forum and notice was issued to the Opposite Party. The Opposite Party submitted the written statement. In the written statement of the Opposite Party it is submitted that the allegations made in the complaint are absolutely false, bogus and imaginary. The Complainant has not approached before this Forum with clean hands hence, she is not entitled for grant of any reliefs. The Opposite Party also contended that it is leading travel agents and tour operators engaged in the filed of organizing international tour as well as in bound tour for last 30 years. The Complainant were part of Exotic Far East Bonanza Tour 2009 (EFE) organized by the Opposite Party. The said tour was 9 night and 10 days commencing on 16/05/2009 from Bombay and tour cost was Rs.80,000/- per person for adult on twin sharing basis. The said EFE tour was as per the itinerary as printed in the brochure of the Opposite Party. Tour was inclusive of visit to Pattaya, Bangkok, Kuala Lumpur, Genting highlands and Singapore and was inclusive of extensive sightseeing as per the brochure and daily breakfast, Veg/Jain lunch and Dinner and subject to the terms and condition as printed in the brochure and registration form. It is also submitted that the Complainant approached Kandivali (W) Branch office of the Opposite Party for tour enquiries. The sale representative briefed complete detail tour programme to the Complainant. The tour price for EFE tour finalized by the Complainant was Rs.80,000/- per person. The Complainant bargained discount of Rs.12,500/- per person and the Complainant choose to travel on any day after 15/05/2009. It is further submitted that the Complainant also booked Thai Airways Flight departing Bombay to Bangkok on 16/05/2007 alongwith other group member. The onward journey tickets were waitlisted and were likely to be confirmed as per the past experience of the Opposite Party and return tickets were duly confirmed. The said ticket and other travel documents were handed over to the Complainant on 14/05/07, however, the Complainant refused to accept the waitlisted ticket and asked Opposite Party to cancel the said ticket and book new confirm ticket of any other airline. The Opposite Party’s representative tried to convince and assure the Complainant that all the tickets would be confirmed in its due course, but the Complainant was adamant and insisted for confirmed tickets and hence, the Opposite Party issued another tickets for the same Tai Airways flight departing on the same day from Hyderabad and the Complainant accepted the said tickets.
8) According to the Opposite Party, the Complainant and the entire group passengers visited all the places as per the itinerary and were provided all the facilities and accommodation as promised in the itinerary. The Opposite Party also submitted that the grievances and the complaints raised by the Complainant are absolutely false and exaggerated and made with malafide intention of the Complainant to gain some compensation which is not due to her. The Opposite Party also denied parawise allegations made in the complaint. The Opposite Party contended that in view of the contentions raised in the written statement the complaint is not maintainable and the same is liable to be dismissed with compensatory cost to the Opposite Party.
9) The Complainant filed rejoinder to the complaint after filing the written statement and denied the contentions raised in the written statement by the Opposite Party. The Complainant also relied the affidavit of one Prakash Shetty who had travel in the tour alongwith the Complainant arranged by the Opposite Party. The Opposite Party did not file any affidavit of evidence. The Complainant has filed written argument. The Opposite Party did not filed written argument. Both the parties remained absent at the time of oral arguments inspite of notice to them. We therefore, decided to proceed to keep the matter for order in view of the pleading of the parties and documents placed on record by the parties as well as written argument filed by the Complainant.
10) While considering the claim made by the Complainant to the tune of Rs.30,000/- for the losses suffered by the Complainant and her family members and she was required to spent some amount for the inconvenience caused to them for not getting food and other facilities which agreed to be provided by the Opposite Party. In our view it is necessary for the Complainant to prove that she made such expenditure was incurred during the aforesaid tour arranged by the Opposite Party by producing the documentary evidence. The Complainant, however, has not produced documentary evidence to that effect. We therefore hold that a claim made on that count cannot be granted. However, in view of the pleadings of the Complainant that the tour was not arranged properly and much inconvenience was caused to the Complainant and other members of the tour is proved by her own affidavit as well as by the affidavit of Prakash Krishna Shetty who was also one of the participant. By his affidavit the inconvenience caused due to mismanagement on the part of the Opposite Party is proved. We therefore, hold that the Complainant is entitled for compensation to the tune of Rs.20,000/- for mental and physical harassment suffered by the Complainant and her family members with interest @ 9% p.a. from the date of tour i.e. 16/05/2009 till its realization from the Opposite Party. The Complainant is also entitled for the cost of Rs.3,000/- towards this proceeding. In the result the following order is passed-
O R D E R
i. Complaint No.274/2009 is partly allowed against Opposite Party.
ii. Opposite Party is directed to pay Rs.20,000/- (Rs.Twenty Thousand Only) with interest @ 9% p.a. from 16/05/2009 till its realization to the Complainant as compensation towards the mental and physical harassment and trace suffered by the Complainant and her three children.
iii. Opposite Party is directed to pay Rs.3,000/- (Rs. Three Thousand Only) to the Complainant towards the legal and incidental charges of this proceeding.
iv. The Opposite Party is directed to comply with the above order within one month from the date of service of this order.
v. Certified copies of this order be furnished to the parties.
