PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) The facts and circumstances leading to file the present complaint by the Complainant in short are as under –
The Complainant No.1 alleged that he is about 68 years and Complainant No.2 is of 57 years old. They are ‘Consumers’ of Opposite Parties. In view of the advertisement by the Opposite Party the Complainant No.1 after making enquiry on 18/09/2010 booked 20 days USA with Mexico tour dtd.05/06/2011 by paying booking amount of Rs.42,000/- for both. At the time of booking the Opposite Party gave total tour cost as per price sheet for entire tour which is filed at page 10, costing Rs.2,36,087/- in respect of each Complainant. It is alleged that the Opposite Party thereafter took Rs.86,999/- and USD 2249, as main tour cost and Rs.38,738/- (Rs.32,000/- + Rs.6,000/- + Rs.738/-) and USD 607 as additional cost for visa, VUSA, Taxes, surcharge, etc. It totaled to Rs.1,05,737/- (after deducting Rs.20,000/- as discount) and USD 2856 per person prior to departure as full tour cost.
2) It is alleged that the tour was completed in between 05/06/2011 to 26/06/2011, as schedule alongwith other co-passengers. During the said period, tour Manager - Ms. Tejaswini of Opposite Party No.2 extorted more money stating as instructed by Opposite Parties. The Complainant is also suffered many deficiencies in service. The complainant No.1 therefore, made correspondence with Opposite Parties and tried to settle money matters but Opposite Parties did not agree fully and therefore, they have filed the present complaint.
3) According to the Complainant, as per the terms and conditions of brochure the travel insurance, cost of Rs.738/- each was included in main tour cost. However, on 14/05/2011, Opposite Party No.1 obtained Rs.1,476/- from both complaints under the false pretext of mediclaim insurance as per the documents at page 11-13. The Complainant alleged that the Opposite Party cheated to them and refused to refund, is unfair business practice in view of document at page 14A.
4) It is the case of the Complainants that they were holding USA Visa therefore, the Complainant No.1 discussed about the deduction with the staff of the Opposite Party No.1. Then on 18/09/2010, one Mr. Silpi booking staff promised to deduct Rs.10,000/- to Rs.11,000/- each instead of cost offer sheet Rs.7,000/- out of Rs.32,000/- each and wrote so on tour cost offer sheet at page 10. However, on 15/05/2011 at the time of final payment Rs.7,000/- each, only were deducted by Opposite Party No.1. The Complainants alleged that in fact, an amount of Rs.7,094/- each has been paid by them as visa cost, apart from agents processing handling, documentation, etc. changes & services as per page 14& 15. According to the Complainant the Opposite Party breached the promise by not deducting Rs.10,000/- to Rs.11,000/- as per the Complainants having their own visas. According to the Complainant the Opposite Parties have taken Rs.50,000/- extra only for visa and tax apart from the main tour cost. As per the tour cost sheet it is alleged that Opposite Parties have not rendered any services for their visas and therefore, they have no right to take any amount for that purpose. The Complainants have therefore claimed refund of Rs.50,000/-(Rs.25,000/- each) as a fair business. According to the Complainants, the Opposite Parties advertised 20 days tour for Rs.1,89,990/- per person with Visa, VUSA and taxes, etc. However, the Opposite Parties collected Rs.86,999/- + USD 2249 @ 48 i.e. Rs.1,07,952/- totaling to Rs.1,94,951/- as main tour cost excluding Visa, VUSA taxes, etc. It is alleged that the Opposite Party took Rs.,9,922/- (Rs.4,961/-per person) more on main total cost by giving misleading and attractive advertisement and thereby committed unfair business. The Complainants prayed that the Opposite Parties should refund entire difference amount and not partial as agreed by them at page 16. It is alleged that the tour Manager during the tour collected 80 dollars (2 dollars each for 20 days) a fixed amount of tip in advance, for paying to coach drivers, guides, etc. saying it is compulsory/mandatory as per the directions of Opposite Parties. It is contended that during the tour of the Complainant there was no coach/bus, for 4 days and no legal guide for 16 days. The Complainant alleged many times they themselves loaded, unloaded their luggage into the buses/coaches, hotels, airports, etc. and despite this the tips were collected in advance for all 20 days. The Opposite Party thus, exercised unfair business practice.
5) On 15/06/2011, on Cruise Cozumel (Mexico) 52 dollars (26 each) were levied on Complainant though Opposite Party No.1 had already taken USD 607 from each Complainant for VUSA & Port taxes at page 11. On 20/06/2011, Tour Manager collected USD 175 each (total 350) for their option Grant Canyon West Rim Bus Tour but on its offer price-chart its price was given as USD 165 each. Thus, USD 20 for both the Complainant were collected more. The Opposite Party agreed to refund after correspondence by the Complainant No.1 the said amount as per page 16.
6) The Complainants have alleged that the feedback, response/communication from staff of Opposite Party No.1 was worst. The coaches/buses provided were found uncomfortable and ordinary. On 07/06/2011, while proceeding to Washington, it failed to take normal pick-up speed. So all the passengers were asked to get down and made to sit on highway for replacement. On 28/06/2011, while going to Las Vegas through very hot temperature desert, the air-conditioner of coach was not working and all passengers were subjected to unbearable heat. The local guides selected were not knowledgably. On 11/06/2011, at Magic Kingdom in Orlando, they were just dropped in thousands of hectares area and instructed to see the places of tour at their own instead of leading/taking to few selected important places. On 12/06/2011 at Epcot at Orlando and on 14/06/2011 at Key West Island. The similar deficiencies were suffered by the Complainant and other co-passengers on 23/06/2011 in front of Hollywood Star Universal Studio. The Complainant and other co-passengers were required to spend PP house unnecessarily for lunch and therefore, could not enjoy the said studio because of mismanagement of meals and lack of proper leading services by the Opposite Party.
7) The Complainants therefore, prayed that the Opposite Parties be directed to pay Rs.1,476/- in total to the Complainants for mediclaim insurance, Rs.50,000/- in total for both the Complainants as visa amount, Rs.9,992/- in total for both the Complainants as a difference in the advertisement offer and actual payment amount paid and also prayed for direction against the Opposite Parties to pay 152 dollars in total to both Complainants towards tips and other amounts levied amongst tour head and extra amount taken for optional tour event alongwith interest from the dates when it was collected and recovered from the Complainants i.e. in May, 2011 and June, 2011. The Complainants have prayed for direction of Rs.1,25,000/- as compensation for deficiencies in services, mismanagement, etc., Rs.1 Lac for both the Complainants towards mental torture, agony and harassment, etc., Rs.5,000/- as cost of this proceeding and Rs.5,000/- as expenses of this case. The Complainants have thus prayed for grant of interest on total amount of Rs.2,25,000/- as referred above alongwith interest @ 18% from the date of order till its payment.
8) The Opposite Parties No.1 & 2 by their written statement contested the claim on all counts, such as rejoinder misjoinder of parties, suppression of material facts, misrepresentation, etc. It is contended that the Complainant have not laid a single piece of documentary evidence to prove any deficiency in the services afforded to the Complainants which would have effectively strengthened their case of praying compensation from the Opposite Parties. It is contended that the Complainants are at fault in claiming compensation of Rs.3,03,000/- on the tour cost paid by them. The complaint is false, frivolous and vexatious and the same has been filed with malafide intention and to seek and unjust monitory benefits from the Opposite Parties and therefore, deserves to be dismissed with compensatory costs.
9) It is denied that the Tour Manager has extorted any monies from the Complainants whatsoever. The Opposite Parties vide their communication dtd.13/09/2011 clearly explained to the Complainants that the insurance was part of the tour cost and has been collected accordingly. The Complainants were already carrying on US Visas at the booking stage and therefore, the booking staff of the Opposite Parties has clearly specified to the Complainants about the deduction of Rs.7,000/- from Rs.32,000/- towards visas and taxes as per price grid. The Complainants were given deduction of Rs.7,000/- per person towards US Visa with a clear indication that the Government tax on travel amounting to Rs.25,000/- per person was always payable alongwith tour cost. The SOTC brochure of the said tour clearly indicates “inclusion and exclusions” in the tour price which the Complainants have read and understood and agreed. It was clearly explained that the actual visa charges are Rs.7,000/- which is payable upfront alongwith the visa application and in case they had a U.S. Visa they would be getting reduction of Rs.7,000/- towards the Visa charges. However, the deduction of Rs.11,000/- is totally different issue altogether and the question of deduction for the amount of Rs.11,000/- arises only when the visa application of the applicant is rejected. The Opposite Parties denied that they committed any breach of promise or they exercised unfair trade practice as alleged. It is contended that as per Exh.‘C’ collectively are the copies of the invoice and the US brochure detailing inclusion and exclusion in tour price and visa deductions. The Opposite Parties however, vide letter dtd.13/09/2001 agreed to settle the difference between the TT rate of US $ amount to Rs.3,657/- totally to the Complainants and the Opposite Parties are still willing to refund the said amount to the Complainants. As regards the tipping, it is contended that in the terms and conditions under the heading tipping it is clearly stated that “Tipping is customary in all parts of the world for services rendered. Your tour manager/briefing sheet will guide you in this regard.” The briefing sheet also had a provision which is clearly exhibited that “Tip of US $ 2 per person per day is mandatory for the duration of the tour.” However, as the Complainants continued to claim refund of the tip amount collected by the tour Manager under the pretext of dissatisfaction of service etc., the Opposite Party without entering into the matter, for the sake of retaining its client agreed to refund the tip amount vide letter dtd.13/09/2011. As regards the claim in respect of immigration fees on arrival at Mexico on tour is totally fictitious. The briefing sheet provided to the Complainants clearly stipulates the need for the passengers travelling on the tour “to pay USD 26 per person as immigration fees upon arrival in Mexico” and therefore, the Complainants cannot claim ignorance to the payment of the said amount of USD 52 for two persons. The Opposite Parties however, contended that inspite of above in order to retain the clients for future, the Opposite Party had agreed to offer the refund of USD 52 (USD 26 * 2) @ USD 48.67 amounting to Rs.2530/- totally vide its letter dtd.13/09/2011. Despite the above the Complainants have deliberately and intentionally approached this Forum claiming that the Opposite Party has tried to hide this fact or intended to cheat the Complainants. It is contended that the briefing sheet i.e. Exh.‘D’ was handed over to the Complainants before their departure on tour. It is contented that this clearly demonstrates the motive on the part of the Complainants to file this false complaint. It is further contended that no other tour participants had any grievance regarding the same amount paid at Mexico and there is no complaint whatsoever from any other tour participants as regards this issue. It is contended that ground raised by the Complainants with respect of tour price for Grand Canyon West Rim optional tour is totally false and devoid of any merits. According to the Opposite Parties, the Complainants were aware and insure that fuel surcharge of the US $ 10 on the Grand Canyon Tour is applicable. It is contended that “Tour Price” clearly stipulates that the price listed in the tour price sheet are indicative and are subject to change. In additional to this, the briefing sheet visibly indicates that “Fuel Surcharge of USD 10 is applicable on all Grand Canyon optional tour:” It is contended that USD 175 per person was applicable to every tour participant for the said tour due to hike in fuel surcharge, which the Opposite Party does not have a control over as the Opposite Party is liable to pay the service providers for the services rendered to the tour participants. It is contended that inspite of a clear indication of the price rise with respect to the said optional tour in the briefing sheet, the Complainants maliciously claimed a refund. However, in order no stretch the matter long, the Opposite Parties offered the Complainants to refund the said amount of USD 20 at Rs.48.67 amounting to Rs.973/-. The Complainants then also have approach this Forum. It is contended that the staff of Opposite Party has extended full cooperation to the Complainant on their tour. The staff of Opposite Party had provided all the ticket and other support timely in keeping with the departure schedule. The Complainants were kept well instructed about the necessities to be carried alongwith them on the tour and the staff of the Opposite Party had provided the Complainants with all travel documents including the tour tickets, insurance, briefing sheet, etc. by 16th May, 2011. The Opposite Party then acted in a customer friendly manner and provided all the necessary assistance to the Complainants with respect to their said tour. As regards the issue of buses/coaches it is contended that it is exaggerated by the Complainants. It is contended that the Complainants were on group tour were more than 45 tour participants were present. If the said issue was so serious there would have obviously been other tour participants complaint in respect of the condition of the coaches. There were no such complaints from any other tour participant and the tour guides have received immense praise from other tour participants. As regards the service were not provided by the tour manager at Magic Kingdom and Epcot at Orlando and on 14/06/2011 at Key West Island, it is contended that as per the Company policy and the feed back received from the customers of the Opposite Parties in the past the tour manager does not accompany the tour participants in these theme parks and the tour participants are given their own excursion time at leisure for the entire day to explore the rides, all these rides, events and shows at this park at their discretion. The entire group had enjoyed their rides, events and show at the above stated venues as per the directions and instructions given by the tour manager. The Opposite Party has therefore, denied that there is any deficiency in service. The Opposite Party has relied some of the customers feed back on tour reports which are annexed as Exh.‘E’ collectively. It is contended that the Complainants have accepted that they had obtained the tour facilitation services of the Opposite Party when they travelled to Australia and New Zealand and have disclosed that they had succeeded in obtaining Rs.5,500/- as refund out of the said tour. The Opposite Party submitted that as there are more than concerned about retaining the customers who travel with them and therefore, they had refunded a small amount of refund in gesture to maintain good customer relationship. It is contended that it is highly obvious that either the Complainants have appreciated the past services of the Opposite Party and therefore, once again booked the tour in question for themselves or assumed the gesture of Opposite Party as the weakness and planed to recover or extort huge amounts from the Opposite Party after enjoying the tour services either by harassing through voluminous correspondence or by making false complaint before this Forum. As regards Mr. Babasaheb Bhand, the Managing Director of Saket Publications, Aurangabad, it is contended that he has not uttered a single word, incidence or issue of what is allegedly appearing in his sworn affidavit. The Opposite Parties have therefore, contended that the Complainants are not entitled for any compensation except for what the Opposite Parties have specifically agreed in their letter dtd.13/09/2011. It is the contention of the Opposite Parties that the Complainants have enjoyed the tour services and after returning back filed this motivated and false complaint with the sole intention of extortions lakhs from the Opposite Parties. It is therefore, submitted that the complaint be dismissed with cost.
10) The Complainants have filed their affidavit in support of their complaint. The Opposite Party has also filed affidavit of Shambhu Roy, Manager -Legal, in support of their contentions. Both the parties have submitted their written arguments. We have heard the Complainant No.1 in person and Shri. Sujit Satam, Ld.Advocate for the Opposite Parties.
11) While considering the claim made by the Complainants regarding the following items – such as, 1) Insurance Rs.738/- per person 2) Visa amount Rs.32,000/- per person on the ground that it is included in main tour price, 3) Visa amount taken extra Rs.25,000/- per person, 4) Amount taken more than offer price than the advertisement Rs.4,961/- per person, 5) Tips Rs.1,946.5 per person, 6) Cruise cost Rs.1,265/- per person, 7) Extra in optional event Rs.973/-.
12) First of all it is necessary that the Opposite Parties by their letter dtd.13/09/2011 issued to Complainant No.1 showed their willingness to pay Rs.3,893/- in total for both the Complainants as per their conversation towards the tips collected on tour for 80 USD at 48.67. The Opposite Party also agreed to refund or the immigration fees collected on 2 for 52 USD @ 48.67 amounting to Rs.2,530/- total for both the Complainants. The Opposite Parties have also agreed to refund optional for the Grand Canyon to the Complainant i.e. 20 USD @ 48.67 amounting to Rs.973/- The Opposite Party also agreed to refund Rs.3,657/- to the Complainants as the Complainants paid the dollar Complainant thorough TT transfer and thus, agreed to pay Rs.3,657/- totaling in excess for which they agreed to refund the same. In all the Opposite Parties agreed to refund an amount of Rs.11,053/- as full and final settlement. At the time of argument the Complainant has not disputed that the Opposite Parties rightly agreed to refund tips, optional and extra charges recovered on cruise as mentioned above. He has however, submitted that the amount taken more than offered price was required to be refunded to both the parties in total of Rs.9,922/- which according to the Complainant No.1 is admitted partly by the Opposite Party. while considering this aspects for the contention raised by the Complainant, we are of the view that the Opposite Party has specifically explained that how they are going to refund Rs.3,657/-. We find that the said explanation given by the Opposite Party in their letter at Exh.‘B’ field with written statement is just and proper. There is also inconsistency in the amounts mentioned as paid by the Complainants to Opposite Parties in para 3 & 8 of the complaint. We are therefore, hold that for the above 4 disputed items the offer given by the Opposite Parties to refund amount of Rs.11,053/- is just and proper. In view of the contention raised by the Opposite Parties in their written statement as well as in view of the explanation given in the letter at Exh.‘B’. The Complainants would be therefore, entitled to that much amount only and not more than that.
13) As regards the claim of travel insurance is concern we hold that the Opposite Party as per the document produced on record by the Complainant as annexure 4 with supplementary written argument shows agreed that mediclaim cost are inclusive of SOCTC - service charges. It appears that the said agreement is made between the Complainant No.1 and retail officer of the Opposite Party Shilpi Yadav of the Opposite Party and agreed to the above fact. Furthermore at page 14A filed alongwith complaint by the Complainants there is mention that cost of travel insurance valid for the duration of the tour is included in tour price. We therefore, hold that the contention raised by the Opposite Party that the insurance is part of the tour cost and same has been collected accordingly is wrong contention raised by the Opposite Party. We therefore, hold that the Opposite Parties are liable to pay Rs.1,476/- in total to both the Complainants.
14) As regards the claim of visa amount it is contention of the Complainant that the Complainants are entitled for Rs.64,000/- as the visa amount as included in the main tour price. It is also the contention of the Complainants that the amount of Rs.50,000/- is taken extra towards visa amount by the Opposite Parties and therefore, they are entitle to total amount of Rs.1,14,000/- from the Opposite Parties. In this regard, if we look the price components sheet for the tour enjoyed by the Complainants which is filed at page 10 with the complaint in the said component sheet Rs.32,000/- are shown required to be paid by each adult person for visa and taxes. The said amount is not only towards visa. There is also note that visa reduction for processing their own visas – of USA – Rs.7,000/- (in case of Visa holding pax sales must select “Visa on own only”). In the document signed by the Complainant as well as the retail officer of the Opposite Parties Shilpi Yadav, it is mentioned that visas cost are inclusive in SOTC service charges. The Complainants have specifically in para 7 of the complaint have alleged that the Opposite Parties have taken Rs.25,000/- each for visa and tax (unknown) apart from their main tour cost. In the document placed on record by the Complainant as referred above at page 10 an amount of Rs.7,000/- appears to have been liable to be deducted from the amount of Visa and taxes are not included in it. In para 7, the Complainants have admitted that the deduction of Rs.7,000/- to each Complainant was given by the Opposite Party. Furthermore, as per the document filed at page 14A by the Complainant visa charges, airport and port taxes have not been included in the tour cost. The Opposite Parties have therefore, rightly alleged deduction from the amount of Rs.32,000/- to the tune of Rs.7,000/- to each Complainant was given as per the brochure and the invoice placed on record to this complaint. The contention therefore, raised by the Opposite Parties that the Complainant were given deduction of Rs.7,000/- per person towards US Visa with a clear indication that the Government taxation amounting to Rs.25,000/- per person was always payable alongwith tour cost can be said just and proper in view of the documents placed on record. We do not therefore, agree with the contention of the Complainant that Rs.32,000/- for each Complainant was included towards Visa amount in main tour price. We also do not agree with the submission of the Complainant that the Opposite Party has wrongly collected visa amount extra @ Rs.25,000/- for each Complainant. We therefore, hold that the claim made by the Complainants towards visa amount of Rs.1,14,000/- is liable to be rejected.
15) The Complainants have prayed that the Opposite Parties be directed to pay Rs.1,25,000/- as compensation for deficiencies in services as well as substandard coaches. While considering these aspects it appears that some of the co-passengers have in their feed back have specifically contended that coaches in the said trip were not satisfactory. Such type of feed back is of K.J. Raghvendra, Jaishree Ringangonkar. Some of the co-travelers have experience not providing good guides. The said feed back which are placed on record by the Opposite Party also show that there was mismanagement in the tour programme and thereby the contention of Complainants that they had suffered dissatisfaction with the tour arranged by the Opposite Parties have some substance. We therefore, hold that on that count Opposite Parties are liable to pay compensation to each Complainant to the tune of Rs.10,000/- which would include the mental agony and harassment suffered by each Complainant. They are not entitle to separate claim of Rs.50,000/- for mental agony, harassment as claimed. We also hold that the Opposite Parties are liable to pay Rs.5,000/- towards the cost of this proceeding. The authority relied by the Complainant in the case of Kuoni Travel (India) Pvt. Ltd. V/s. Arun Sinha, reported in I (2012) CPJ 513 (NC) relied by the Complainants in their argument, in our view is not appropriately applicable for grant of the exorbitant claim made by the Complainants against the Opposite Parties. In the result the following order is passed :-
O R D E R
i. Complaint No.324/2011 is partly allowed against Opposite Party Nos. 1 & 2.
ii. Opposite Party Nos.1 & 2 are directed to pay jointly and/or severally Rs.11,053/- (Rs. Eleven Thousand Fifty Three Only) to the complainants as communicated by them in the letter dtd.13/09/2011 to the Complainant No.1.
iii. Opposite Party No.1 & 2 do pay jointly and/or severally an amount of Rs.1,476/-(Rs. One Thousand Four Hundred Seventy Six Only) for mediclaim insurance to the Complainants.
iv. The Opposite Party No.1 & 2 do pay jointly and/or severally an amount of Rs.10,000/- (Rs.Ten Thousand Only) to each Complainant towards the deficiency of service, mental agony and harassment suffered by the Complainants during the tour programme for the period 05/06/2011 to 26/06/2011 of USA and Mexico.
v. The Opposite Party No.1 & 2 do pay jointly and/or severally an amount of Rs.5,000/- (Rs.Five Thousand Only) to the Complainants in total towards cost of this proceeding.
vi. The Opposite Party No.1 & 2 are directed to comply with the above order within one month from the date of service of this order.
vii. Certified copies of this order be furnished to the parties.
