DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 29^th day of June 2018

Present   : Smt.Shiny.P.R. President

              : Smt.Suma.K.P. Member                                Date of filing:  11/09/2014

              : Sri.V.P.Anantha Narayanan, Member

                                                       CC/134/2014                                                 

Abdul Azeez Cheruvalappil,

S/o Ibrahim Cheruvalappil,

Adakkaparambil House, Pattikkara,

Chiranallur, Thrissur – 680 501.

(Now working as Director,

Growmore International Engineering Consultant,

P.O Box No.3282, Abudhabi, UAE)

(By Advocate.P.Gopinath): Complainant

Al Salam India Hajj Service,

25/582 (8), Chella Tower,

Manjakulam, Palakkad – 14.

(By Adv.Manoj Ambatt)

Marwa Hajj Service, Majid Building,

Valanchery Road, Koppam,

Pulassery Post, Palakkad – 679 309.: Opposite parties

(By Adv.A.A.Jamal)

Aliraja Castle, Sir J.J Road,

Byculla, Mumbai – 400 008.

 (By Adv.P.M.Suresh Babu)

                                                          O R D E R

By Smt.Suma.K.P. Member

           The above complaint is filed by the complainant on the averment that the complainant had paid Rs.11,25,000/- to the opposite parties for procurement of Hajj Visa for the complainant and his parents in law of which only the parents in  law could go for Hajj and though the complainant was procured a Hajj visa by the opposite parties, it was cancelled later and thereafter an amount of Rs.3,75,000/- paid for the Hajj visa of the complainant was not returned by the opposite parties to the complainant and the complainant has now approached before the Forum seeking return of Rs.3,75,000/- with interest @ 12% p.a and compensation for the mental agony and cost of this complaint. 

          The opposite parties entered appearance and filed their versions.  1^st opposite party contended that he had received only Rs.6,00,000/- as he could not procure the visa and it was kept with him on the request of the complainant which was later transfer to 2^nd opposite party on the direction of the complainant and his liability stands extinguished. 

          The complainant’s case in the complaint is that Rs.6,00,000/- was given to the 1^st opposite party and Rs.5,25,000/- was later transferred to the account of 2^nd opposite party on the direction of the 1^st opposite party which was later transferred to the account of the 3^rd opposite party.  1^st opposite party had denied this contention in their version. 

The 2^nd opposite party contended that on the direction of the other opposite parties the money was transferred to his account which was subsequently transferred to the 3^rd opposite party and he has no liability to pay back the amount. 

The 3^rd opposite party filed his version admitting receipt of Rs.7,50,000/- for 3 visas.  The 3^rd opposite party further alleges that the complainant was working abroad in Abudabi and he had sent his passport unauthorisedly to India while he was in Abudabi and thereafter stamping up visa, the 3^rd opposite party came to know that the passport was unauthorisedly sent by the complainant to the 3^rd opposite party.  The visa was cancelled by the 3^rd opposite party as it violates Hajj rules.  The 3^rd opposite party further alleges that the amount given by the complainant was sent for making arrangements for travel for getting visa and for accommodation and an amount of Rs.50,000/- was returned to the complainant. 

The complainant filed chief affidavit Exts.A1 to A9 were marked from the side of the complainant.  He was cross examined as PW1.  The 2^nd opposite party did not adduce any evidence.  Opposite party 1 was cross examined as DW1.  The 3^rd opposite party also filed chief affidavit and was cross examined as DW2.  Ext.B1 was marked during cross examination of complainant which was again marked through DW2.  Evidence was closed and matter was heard.      

The following issues that arise for consideration are.

1. Whether there is any deficiency of service from the part of opposite parties?
2. If so, what are the relief and cost?

Issues No.1 & 2

          We have perused documents as well as their affidavit along with the oral evidence tendered before the Forum.  According to the complainant he has approached the 1^st opposite party for securing 3 Hajj Visas, one for him and other two for his in-laws.  Subsequently he paid money as demanded by 1^st opposite party.  According to the 1^st opposite party he was not able to secure Hajj quota during that period, and by informing the complainant 1^st opposite party entrusted the document and cash to the 2^nd opposite party.  In this particular case the consistent plea and case of the complainant is that he has approached the 1^st opposite party for securing visa, when he fail to get Hajj quota for the year, 1^st opposite party promised the complainant that he will secure the Hajj visa from other sources such as 2^nd opposite party. 

          The stand of the opposite party regarding receipt of money and procurement of visa is contradictory and mutually destructive.  The complainant alleges that he had paid Rs.6,00,000/- to the 1^st opposite party which is evident from Exts.A1 to A3 and A5.  A1 & A2 bears the date.05.06.2013 and A3 bears the date.17.06.2013 issued by the opposite party No.1.  From Ext.A5 it is viewed that an amount of Rs.1,00,000/- was transferred on 07.06.2013 from the account of the complainant in State Bank of India in Kecheri to the 1^st opposite party.  Ext.A1 to A3 and A5 shows that an amount of Rs.6,00,000/- was paid to the 1^st opposite party.  From Ext.A4 it is viewed that an amount of Rs.5,25,000/- was transferred on 02.09.2013 to the account of 2^nd opposite party.  From the statement of the complainant and from Ext.A1 to A5 it is viewed that an amount of  Rs.11,25,000/- had been paid to the opposite parties 1 & 2.  The complainant had further stated in the complaint that as the Visa could not be procured by the 1^st opposite party an additional amount of Rs.5,25,000/- was transfer to 2^nd opposite party on the instruction of 1^st opposite party.  The 1^st & 2^nd opposite parties assured the complainant that visa could be procured through 3^rd opposite party.  1^st opposite party in his version and evidence states that he did not agree to arrange visa through 2^nd & 3^rd opposite party and his case is that the complainant went directly to 2^nd & 3^rd opposite party for obtaining visa and had transferred Rs.6,00,000/- to the account of 2^nd opposite party on 25.07.2013.  This was neither pleaded in the version submitted by him or by any document.  The 2^nd opposite party had stated in his version that he used to contact 1^st & 3^rd opposite parties for arranging visa and other documents for his usual clients.  He had also stated that the amount which was transferred to his account was transferred to the account of 3^rd opposite party as demanded by the 1^st opposite party.  Hence, from the version of opposite parties it is seen that it was the 1^st opposite party who had directed the 2^nd opposite party to transfer the amount of Rs.5,25,000/- for visa of the complainant and his parents in law to the 3^rd opposite party.  The 3^rd opposite party in his version has admitted that he had received 3 drafts of Rs.2,50,000/- each for obtaining three Hajj visas from the 2^nd opposite party.  He had also stated that he had not received any other amounts from 1^st & 2^nd opposite parties in this regard.  From the evidence on record and from the versions of the opposite parties and from the evidence adduced by the complainant it is revealed that an amount of Rs.11,25,000/- was paid by the complainant for obtaining 3 visas of the complainant and his parents-in-law, each visa costing Rs.3,75,000/-.  From Exts.A1 to A3 & Ext.A5 it is obvious that Rs.6,00,000/- was paid to the 1^st opposite party and from Ext.A4 shows receipt of Rs.5,25,000/- by 2^nd opposite party. 

          The opposite parties 1 & 2 have not produced any evidence to prove the transfer of money from their account to the 3^rd opposite party though the 1^st opposite party in evidence states that he has got documents to show the transfer of money to other opposite parties.  3^rd opposite party had also not produced any document to show the receipt of Rs.7,50,000/-.  3^rd opposite party has also not produce any document to show that he had received only Rs.7,50,000/-, though he says these documents are available. 

          As already stated, Ext.A1-A3 and A5 shows receipt of Rs.6,00,000/- by opposite party No.1 from the complainant.  Ext.A4 shows receipt of Rs.5,25,000/- by 2^nd opposite party from the complainant.  The statement and evidence of 3^rd opposite party shows that he had received Rs.7,50,000/- for the visas.  It is admitted case of both sides that 2^nd opposite party had received only Rs.5,25,000/-.  3^rd opposite party says that he had received Rs.7,50,000/- from 2^nd opposite party.  This would clearly show that all the opposite parties were acting in collusion in the transaction.  The only possibility might be that Rs.2,25,000/- was given by 1^st opposite party to 3^rd opposite party to make up Rs.7,50,000/-.  This would clearly shows that all the opposite parties had together collected an amount of Rs.11,25,000/- from the complainant to procure visa for the complainant as well as his parents in laws. 

          The 3^rd opposite party washes off his liability to pay the amount stating that the visa was cancelled at their request by the Saudi Embassy which disentitled the complainant for refund of the visa charges.  The case of 3^rd opposite party is that he requested for cancellation of visa as the complainant had submitted his passport for visa when he was in Abudabi which disentitled him to get the refund of visa charges.  It is the admitted case of both the complainant and 3^rd opposite party that the passport was sent for affixture of visa when the complainant was in Abudabi.  Ext.A9 is a Indian passport issued to the complainant under the provisions of Passport Act, 1967.  There is nothing in Passport Act 1967 which governs in law relating to Indian passport which prohibits sending of passport to India when the passport holder was abroad.  The law on passport promulgated by Indian Government under the Passport Act does not restrain a person from sending passport to India while he was abroad.  Hence the sending the passport to India to get affixture of visa for Hajj does not violate Passport Act. 

          The 3^rd opposite party says that the Hajj Rules of 2013 prohibits sending of passport to India while a person is abroad.  No Hajj Rules of 2013 are produced by 3^rd opposite party to substantiate his defence.  Under Section 106 of the Indian Evidence Act, a fact which is within the exclusive knowledge of a party has to be proved by him.  3^rd opposite party projects himself as a licenced Hajj operator.  If that be the case it was easy to produce Hajj Rules of 2013 to prove his case.  He had also admitted in evidence that the Hajj rules of 2013 is available.  The non production of Hajj Rules empowers the Forum to draw an adverse inference against the 3^rd opposite party. 

          The 3^rd opposite party states that he had applied to the Saudi Arabian Embassy to cancel the visa of the complainant.  No document was produced to prove this aspect.  It is easy for 3^rd opposite party to procure a document form Saudi Arabian Embassy to show that a person who applies for Hajj visa from a particular country should be in that country to apply visa for Hajj which is a repairment for the process of visa according to 3^rd opposite party.  No such document is produced from the Saudi Embassy by 3^rd opposite party though he is a licenced Hajj operator. 

In this context even before process of visa it can be seen from the passport whether the passport holder is in India or not.  It is admitted by 3^rd opposite party (DW2) during examination as follows:-

“]mkvt]mÀ«v ]cntim[n¨m Bkab¯v B hyàn C³Uybn Dt­m, CÃtbm F¶v Adnbm³ Ignbpw A\ymb¡mcsâ ]mkvt]mÀ«v B kab¯v ]cntim[n¨n«nÃ.  (witness adds) hnk ASn¡p¶Xn\p ap³]v ]cntim[n¨n«nÔ.

This clearly shows that the requirement of passport holder to be India is only a false defence set up by the 3^rd opposite party to wriggle out of the liability.  It is also pertinent to not that the visa goes for stamping in embassy and they verify it before issuance of visa.  If there was a Rule which disentitled Indian passport holder for visa when he sends his passport for stamping of visa while he was not in India at the time of sending the passport for visa, it would have been clearly seen by the embassy as the original passport was sent for affixture of visa which would show the date of entry of the complainant to Abudabi.  This was not noted by the Saudi Embassy and not taken as a disqualification for issuance of visa which clearly shows that the Saudi Embassy did not have such a rule for disqualification. 

There is nothing in evidence for the opposite party to substantiate the defence set forth. 

On an overall analysis of the above aspects the defence of 3^rd opposite party can be inferred as a defence to evade the liability.  Ext.B1 is the document produced by 3^rd opposite party which is set to be a permission of quota of 58 persons.  At the time of cross examination of 3^rd opposite party regarding Ext.B1 his answers are as follows.  “Ministry of External affairs  \n¶pw R§Ä hgn¡v hnk Aeu«v sNbvXhcpsS enÌv CÃ. B1 tcJ am{Xsa DÅq.  (Ext.B1 shown to witness)  \n¶pw kÀ«nss^ sNbvXn«nÃ.  Ext.B1  flight date D­v.  AXv 10/05/2013 BWv”    

In this case, the first payment was made by the complainant on 05.06.2013 and the last payment was made on 02.09.2013 by the complainant.  Ext.B1 is a list containing the name of the complainant in which the date of the flight is shown as 10.05.2013.  The document does not bears any seal or signature of any authority.  It is inconceivable to find a name of the complainant in a list containing the date of flight on 10.05.2013, when the complainant had made the first payment for Hajj only on 05.06.2016. 

3^rd opposite party states that he had made a payment of Rs.50,000/- to the complainant as refund of balance Airfare.  During cross examination DW2 had stated that, he had given Rs.50,000/- to one Usman Moulavi of Chemmadu.  But no documents were produced from Usman Maulavi on receipt of Rs.50,000/-.  DW2 had also stated during cross examination that the complainant has no relationship with Usman Moulavi.  The 3^rd opposite party in his version states that he had expended money from the amount paid by the complainant for arranging stay, procurement of visa and flight ticket.  During cross examination DW2 had stated that “Hmtcm koän\pw F{X cq] Nnehm¡n F¶p ImWn¡p¶ IW¡p­v.  ChnsS lmPcm¡p¶Xn\v _p²nap«nÔ.

From his admission it is clear that he had documents to show expenditure made for each tickets.  The non production of documents which is within the exclusive custody of 3^rd opposite party leads to an inference that no amount is spend to Hajj for the complainant as 3^rd opposite party had not produced documents of expenditure in his possession. 

From the above discussions it is viewed that the opposite parties are in receipt of Rs.11,25,000/- from the complainant towards the payment of Hajj visa for the complainant and his in-laws.  It is also clear from the evidence that they had distributed the said amount of Rs.3,75,000/- each for obtaining the Hajj visa.  Hence, all the opposite parties are jointly and severally liable to refund the amount due towards complainant which amounts to Rs.3,75,000/- (Rupees three lakh seventy five thousand only). 

The complainant is a qualified engineer and a frequent flier.  Hajj trip is a solemn affair for Muslims.  It is taken only after many rituals.  Inability of the complainant to undertake Hajj trip amount to deficiency of service on the part of the opposite parties which entitles the complainant for a compensation. The parents-in-law of the complainant decided to attend for the Hajj trip as the complainant was accompanying them and because of the absence of the complainant, the in-laws were put to hardship as they were depended on others. 

From the above facts, we allow the complaint and the opposite parties are jointly and severally liable to refund Rs.3,75,000/- Rupees three lakh seventy five thousand only) to the complainant with 6% interest from the date of complaint.  We also direct the opposite parties to pay Rs.50,000/- (Rupees fifty thousand only)  towards compensation for the mental agony suffered by him and for the cost of this proceedings.   

This order shall be executed within one months from the date of receipt of this order; failing which the complainant is entitled to realize 9% interest p.a from the opposite parties on the total amount due to him from the date of this order till realization.   

           Pronounced in the open court on this the 29^th day of June 2018.

                                                                                                     Sd/-

                   Shiny.P.R

                   President 

                        Sd/-       

                   Suma.K.P

                    Member

         Sd/-

    V.P.Anantha Narayanan

                   Member

Appendix

Exhibits marked on the side of complainant

Ext.A1          -  Original Cash Receipt for Rs.1,00,000/- issued by the 1^st opposite party

             dated.05.06.2013 to the complainant

Ext.A2          -  Original Cash Receipt for Rs.1,00,000/- issued by the 1^st opposite party

             dated.05.06.2013 to the complainant

Ext.A3          -  Original Cash Receipt for Rs.3,00,000/- issued by the 1^st opposite party

             dated.17.08.2013 to the complainant

Ext.A4          -  Original Certificate dated.13.08.2014 issued by State Bank of Travancore,

              Ponnani Branch to the 2^nd opposite party

Ext.A5          -  Original Statement of Account given by the Branch Manager, State Bank of

              Travancore, Kecheri Branch in the account of the complainant showing

              transfer of Rs.1,00,000/- to the account of the 1^st opposite party

Ext.A6          -  Photocopy of the telephone bills for the period 1^st July to 31^st July 2013

             issued to the company owned by the complainant

Ext.A7          -  Photocopy of the telephone bills for the period 1^st September to 30^th

             September 2013 issued the company owned by the complainant

Ext.A8          -  Photocopy of the business card issued by the 2^nd opposite party to the

             complainant which will show his telephone number

Ext.A9          -  Photocopy of passport of the complainant

Exhibits marked on the side of Opposite parties

Ext.B1 -  Copy of Supriya Travels Pvt.Hajj Tour operator Pilgrim Data Entry

             Manifestation Consulate General of India, Jeddah

Witness examined on the side of complainant

PW1   -  Abdul Azeez Cheruvalappil

Witness examined on the side of opposite parties

DW1   -  Abdul Rahiman

DW2   -  Aboobacker

Cost & Compensation for mental Agony :- Rs.50,000/-