Delhi

StateCommission

FA/930/2013

PARAS HOLIDAYS (P). LTD. - Complainant(s)

Versus

S.K. KAPOOR - Opp.Party(s)

17 Dec 2015

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision:17.12.2015

First Appeal- 930/2013

(Arising out of the order dated 09.07.2013 passed in Complainant Case No. 290/2009 by the District Consumer Disputes Redressal Forum (Central), Kashmere Gate, Delhi)

M/s. Paras Holidays (P) Ltd.,

Corporate Office

321-322, Gold Plaza Building,

Gurudwara Road,

Karol Bagh,

New Delhi-110 005.

                                                        ….Appellant

Versus

Mr. S.K. Kapoor,

S/o Late Shri R.L. Kapoor,

R/o 608, Sector-21,

Gurgaon (Haryana).

….Respondent

CORAM

Justice Veena Birbal, President

OP Gupta, Member(Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

 

 

 

Justice Veena Birbal, President

 

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, “the Act”) against order dated 9.7.13 passed  by the Consumer Disputes Redressal Forum (Central), Kashmere Gate, Delhi (in short, “the District Forum”) in Complaint Case No. 290/2009 whereby the appellant/OP has been directed as under:

“1.        To pay to the complainant a sum of Rs.1,00,000/- (Rs. One Lakh) for causing harassment, pain and mental agony.

2. To pay to the complainant a sum of Rs.10,000/- (Rs. Ten thousand) as cost of litigation.”

2. Briefly the facts relevant for the disposal of appeal are as under:

  Appellant/OP is a tour operator and is engaged in the business of organizing Domestic as well as International Tour Packages.  Respondent herein was the complainant before the District Forum. A package tour, namely, ‘American Wonders’   was booked by respondent/complainant, which included ‘Royal Caribbean Cruise’ to Bahamas with appellant/OP on 27.02.2008. The said tour was for 16 nights/17 days.  The tour was to start on 22.06.2008 and was booked by respondent/complainant for himself and his wife.  The payment of booking amount of Rs.50,000/- was paid to the appellant/OP on 27.02.2008.  The cost of the tour after various discounts was Rs.1,65,000/- per person.  In all the respondent/complainant had to pay Rs.3,30,000/- to appellant/OP.  On 2.4.08, the respondent/complainant paid another Rs.50,000/- to the appellant towards second installment of the booking amount.  After few days thereof, the respondent/complainant approached the appellant/OP for making further payment of the package tour but his request was not entertained.  The respondent/complainant alleged that on 5.6.08, the staff member of appellant/OP had met him and stated that since they were not getting enough bookings, they feared about the cancellation of aforesaid Group Tour.  It was alleged that on the same day, a telephone call was received by respondent/complainant from appellant/OP informing that the tour had been cancelled.   The respondent/complainant told that he had made all the arrangements to participate in the tour and had got necessary clearance for visiting abroad and it was emotional setback for him and his wife.  On the same day, the respondent/complainant wrote a letter to the appellant/OP for shifting them with some other tour operator or in a subsequent tour.  However, nothing was heard from the appellant/OP.  On 11.6.08, another letter was written by the respondent/complainant, but of no use.  On 14.6.08, the respondent/complainant received a letter from the appellant/OP giving unconvincing grounds of cancellation and the booking amount of Rs.1 lac was also returned through cheque.  After cancellation of the tour, the respondent/complainant joined  similar tour with SOTC at a net cost of Rs.4,87,833/-.  The respondent/complainant had alleged that due to cancellation of tour, he had to pay Rs.1,50,000/- more to the SOTC.  The respondent/complainant had alleged deficiency in service on the part of the appellant and had claimed for reimbursement of extra amount which he had paid to SOTC.  The respondent/complainant had also prayed for compensation for causing mental agony as well as cost of litigation.  In all, he had claimed Rs.2,72,883/-. 

3. The claim was opposed by the appellant/OP by filing written statement.  However, the booking of the tour package by  respondent/complainant was admitted.  The amount of Rs.1 lac paid by the respondent/complainant was also admitted.  It was alleged that the tour was cancelled because of non-availability of Visas from US Embassy. It was further alleged that there was no other US tour in the forthcoming schedule of appellant/OP and the appellant/OP also could not accommodate the respondent/complainant in any other Group of Company.  It was alleged that tour was cancelled under the constraint conditions beyond the control of the appellant.  It was alleged that the appellant/OP had informed to the respondent/complainant about the cancellation of the tour and the amount of Rs. 1 lac was also returned vide cheque bearing No.369150 dated 13.6.08.  Appellant/OP had denied that any mental agony was caused to the respondent due to cancellation of tour.  It was denied that the tour was cancelled because enough persons did not come in the group.  It was alleged that the same was cancelled because of non-availability of US Visa from the Embassy.  It was alleged that there is no deficiency in service on the part of the appellant/OP, as such the complaint was liable to be rejected. 
4. The respondent/complainant had filed rejoinder wherein the allegations made in the written statement were denied and the contents of complaint were reiterated.
5. Both the parties led evidence by way of affidavit before the District Forum. The respondent/complainant had placed on record documents relating to the tour, letters exchanged between the parties and the documents pertaining to the tour taken by him through SOTC after the appellant/OP had cancelled the tour.  Appellant/OP had filed booking form i.e. Ex. RW-1/1 to RW-1/4, letter dated 14.6.08 sent to the respondent/complainant about cancellation of tour and the letters sent by respondent/complainant to the appellant/OP.
6. After hearing the Counsel for the parties, the Ld. District Forum had held that in the terms and conditions of the booking, it was nowhere mentioned that if any particular number of persons would not be part of the package tour then the tour operator would have right to cancel the tour and that he would not be liable for any harassment, pain and mental agony suffered by the members of the package.  Ld. District Forum further observed that all the benefits were available to the tour operator in case the tour was cancelled by the passenger.  But no liability was fixed on the part of appellant/OP in case of cancellation by the tour operator.  It was held to be an unfair trade practice.  It was held that tour operator could not absolve from the liability by merely returning the booking amount.  Considering that the respondent/complainant had suffered at the hands of appellant/OP, the Ld. District Forum granted compensation as well as costs of litigation to the respondent/complainant as has been stated above.   
7. Aggrieved with the aforesaid order, present appeal is filed.
8. Ld. Counsel for appellant has contended that the Ld. District Forum has passed the impugned order in an arbitrary manner and contrary to material on record.  It is contended that the tour package was subject to issuance of Visa to the entire group of 25 persons and the same was agreed to by the respondent.  It is contended that the Ld. District Forum did not appreciate that the reason for cancellation of tour was non-availability of Visas from the concerned Embassy and the said essential formalities were beyond the control of the appellant.  It is contended that in these circumstances, the Ld. District Forum ought not have awarded compensation in favour of respondent/complainant.  It is further contended that the impugned judgement has caused unjust enrichment to the respondent. It is also contended that respondent/complainant was informed well in time by the appellant/OP about the cancellation of the tour.
9. On the other hand, Ld. Counsel for respondent has submitted that the Ld. District Forum has considered the entire material on record while passing the impugned order.  No material is placed on record to substantiate that tour was for minimum number of 25 persons as is contended.  The particular number of persons are also not mentioned in written statement.  It is contended that  a well reasoned order is passed after considering the terms and conditions of booking that the same are one sided which amounts to unfair trade practice.  The impugned order is legal and valid.  The appeal be dismissed with costs.
10. The contention of the appellant/OP for cancellation of tour on the ground of non-grant of visa to other members of the tour is considered.  We may mention that in the advertisement as well as in the terms and conditions of the tour, it is nowhere mentioned that if particular number of persons would not be part of the package tour or particular number of persons would not get visa, in that event the tour operator would have the right to cancel the tour and would not be liable for any harassment.  Assuming there was such an agreement as is contended, the allegations made in this regard are not believable.  In the written statement and evidence of appellant/OP filed before the District Forum in the form of affidavit of Shri Neeraj Jain, nothing is stated about particular number of persons getting visas as is contended.  Only in the grounds of appeal, it is alleged that the tour was subject to 25 persons getting the visa from the concerned Embassy.  Again in para 4 in the grounds of appeal, the tour group has been made to 40 persons.  The appellant/OP has taken different stands at different stages without substantiating the same in any manner.  Further the necessary details of the alleged tour members applying to US Embassy is also not given.  It is also not stated as to when the visa was applied and when the same was rejected.  The detail of persons who were allegedly members of the tour i.e. their names, addresses etc. is also not given.  Appellant/OP has made vague allegation in this regard, as such the contention raised has no force and is rejected.
11. We have also examined the terms and conditions relating to the cancellation of the tour.  The same are concerning the members of the group and do not specify any obligation on the part of the tour operator.  Ld. District Forum has rightly observed that the same are one sided and constitute untrade practice on the part of the appellant/OP.
12. The contention of the appellant/OP that no mental tension and harassment has been caused by the cancellation of the tour has also no force.  It may be mentioned that the tour was booked on 27.2.08.  The date of commencement of tour was 22.6.08.  As per material on record, the respondent/complainant was informed only on 5.6.08.  There is no evidence that appellant/OP made efforts for making alternative arrangement for respondent/complainant.  Money of the respondent/complainant had also remained with the appellant/OP uptil 13.6.08 and the appellant/OP has also enjoyed interest on the said amount.  It is also not denied that the respondent/complainant had made alternative arrangement with other tour company and had to incur extra amount of Rs.1,57,833/-.  The respondent/complainant is pursuing the matter since 2008.
13. Considering the totality of facts and circumstances, we find no infirmity or illegality in the impugned order of the Ld. District Forum.  The same is upheld.
14. Appeal stands dismissed.
15. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned

District Forum.  Thereafter the file be consigned to Record Room.

 

(Justice Veena Birbal)

President

 

 

(OP Gupta)

Member(Judicial)