Complaint filed on: 02-11-2011
Disposed on: 28-09-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.2009/2011
DATED THIS THE 28th SEPTEMBER 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainants: -
1. Sri.Jagadish.H.
S/o. Hanumanthappa.H, aged about47 years
2. Smt.Asha Jagadish.H. W/o.Sri.Jagadish, aged about 42 years,
3. Amit Kumar.H. S/o.Jagadish.H, aged about 16 years,
4. Amogh.H. S/o. S/o.Jagadish.H. Aged about 10 years, 3 and 4 are minors represented by their natural father guardian complainant no.1. All are residing at D.No.231, 2nd C Cross, Nagendra block, Bangalore-50
5. Sri.Balaji.H. S/o.Late Hanumantappa, aged about 40 years,
6. Smt.Arati.H. W/o. Balaji.H. aged about 32 years,
7. Sri.Abhishek.H. S/o.Balaji.H. aged about 12 years, minor represented by natural guardianship father complainant no.5
8. Sri.Raghavendra S/o. Bheemasenappa Panaghanti aged 51 years,
9. Smt.Sharada W/o. Raghavendra Panaghanti 43 years
10. Rakesh S/o. Raghavendra Panaghanti, aged 18 years,
11. Rachana D/o. Raghavendra Panaghanti aged 14 years, minor under guardianship of natural father complainant no.8, residing at Bhagyanagar, Koppal.
V/s
Opposite party: -
SOTC
Manager Sales South Holidays of
India, Malik~sEmbassy, 1st Floor no.9, Union Street of Infantry Road, Bangalore-01
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainants against the OP, under section 12 of the Consumer Protection Act, praying to pass an order, directing the OP to pay compensation of Rs.2,75,000=00 i.e. Rs.25,000=00 X 11 persons and to refund of Rs.11,000=00 being the amounts of four tickets and cost of the litigation alongwith interest.
2. The brief facts of the complaint can be stated as under.
The OP has announced highlights of Kashmir-Package trip to Kashmir for 6 nights and 7 days i.e. Srinagar-Pahalgam-Katra-Vaishnodevi-Jammu from Bangalore and trip commences from date on 27-4-2011 to 3-5-2011. The complainants are belonging to one family and after seeking the detail of trip, they have accepted and become ready to go to the trip, and accordingly on 18-4-2011 the OP has issued letter stating details of trip and payment of tour cost per person Rs.18,722 =00 X 10 in total Rs.1,87,220=00 and helicopter tickets INR Rs.2,750=00 X 11 = 30,250=00 in total of Rs.2,17,470=00 has been paid to OP. On 25-4-2011 the OP has issued another letter stating that travel has been confirmed and details of accommodation arrangement are made. The trip starting from Srinagar on 27-4-2011 to 3-5-2011 the OP has also issued letter of service voucher stating that Meena Travels will provide service at Srinagar. The complainants have gone for tour as per scheme of OP, but there was no proper service at Kashmir. The complainants have faced several problems in tour programme. After return back to Bangalore on 9-5-2011 the 1st complainant has brought to notice of OP the problems and carelessness faced at tour programme by email and it is informed to OP that as per itinerary they were supposed to travel from Srinagar to Jammu by Road on 1-5-2011 and Srinagar to Pahalgam on 30-4-2011. But two days the Jammu-Srinagar highway was closed for public from government due to shifting of the darbar, and this fact was not informed to the complainants. So it is the negligence on the part of the OP. The helicopter tickets at Katra not furnished but only falsely promised that tickets are ready at 11.30 darshan of Vaishnodevi, but the OP or their agent at Katra did not provide service as undertaken by OP and hence there is deficiency of service on the part of the OP. On 16-5-2011 the OP has issued letter stating that OP collected Rs.2,000=00 X 11 total Rs.22,000=00 from11 persons is not correct. In fact the total amount collected was Rs.30,250=00 towards costs of helicopter but the OP refunded only Rs.19,250=00 on 6-6-2011, but the OP has to refund still the balance amount Rs.11,000=00 in respect of four persons. The complainant again sent mail to refund the amount and OP has sent a letter. On 17-5-2011 the OP sent a letter by mail stating that there was a error in the refund figure and apologized for the inconvenience caused. Having regard to the facts and circumstances of the case the OP has committed negligence, deficiency of service, unfair trade practice and harassment and mental agony and inconvenience caused to the complainants and that wherein minor children, and ladies were made to walk on the road about several kilometers and even the OP has not provided horses to go to seeing places and OP has to pay the compensation amount of Rs.25,000=00 X 11 persons in all Rs.2,75,000=00 and to pay Rs.11,000=00 and cost of litigation alongwith interest.
3. After service of the notice, the OP appeared through his counsel and filed objection contending interalia as under:
The complaint of the complainants is not maintainable either in law or on the facts. The complainants have approached the forum with unclean hands and they have indulged in misrepresentation and deliberate suppression of material facts with malafide intentions. This forum does not have the jurisdiction to entertain and try the complaint. The complaint suffers from mis-joinder of parties as Kuoni Travel (India) Pvt. Ltd is a legal entity being a company incorporated under the provisions of the companies Act and the OP named in the cause title is its registered trademark. It is Kuoni Travel (India) Pvt. Ltd which is capable of suing and being sued in its own name. Under the provisions of section 51 of the Companies Act summons can be served only at the registered office. This forum does not have the jurisdiction to try and entertain the present complaint. The said terms and conditions between the parties are binding contract between the complainants and OP. The 1st complainant had approached the OP to avail the best of Kashmir tour package between 27-4-2011 to 3-5-2011. the OP had explained the details of the tour along with itinerary to the complainants. Thereafter the 1st complainant after fully understanding the terms and conditions and the nature of the tour signed the booking form. The complainants are satisfied with the clarification issued by the OP. The detailed itinerary was provided to the complainants and as per the itinerary the complainants were to travel from Srinagar to Pahelgam on 30-4-2011 and Srinagar to Jammu on 1-5-2011 on road. However, the state government without any prior notification had issued a prohibition order closing the roads for local public in view of the shifting of the durbar. It is pertinent to state that though the shifting of durbar happens twice a year over a period of ten days. The OP or its agents cannot make any alternative arrangement without there being a specific circular or information regarding the traffic arrangement. The OP was not aware of the highway being closed for public and made every effort to make the complainants’ journey smooth. The OP with great difficulty managed to obtain special permission from the CMO and ensured that the complainants travelled as per their itinerary. This fact was explained to the complainants and such a circumstance is a fore-majeure situation which could not be prevented and the OP cannot be held responsible or negligent. Moreover it is not the complainant’s case that they did not visit Jammu or Pahalgam. It is false to state that, the OP had not arranged for tickets for the helicopter tickets to travel to Vaishnodevi for darshan. In fact the OP had managed to arrange for the tickets and had asked the 1st complainant to go along with the other complainants to Bali resorts by 8 am on 2-5-2011 instead of it 1st complainant went there alone that too at 10 am instead of 8 am and informed that the other members were sleeping and he could not bring them along. Due to the delay by the complainants themselves, they could not avail the helicopter trip excepting 4 members and it is pertinent to note that the helicopter tickets are provided on first come first service basis an due to government regulations advanced booking of tickets is not permitted. This situation occurred only due to the carelessness of the complainants and the OP despite this fact has reimbursed the helicopter ticket amounts after deducting the ticket cost of four members who took the helicopter ride. The OP had collected a total amount of Rs.30,250=00 for 11 members at the cost of Rs.2750=00 per person for the helicopter tickets and has rightly deducted Rs.11,000=00 in view of four complainants availing the helicopter service. The OP vide its email dated 16-5-011 had inadvertently stated a wrong amount of refund in respect of heli-tickets and thereafter has vide its email dated 17-5-2011explained the error in the previous mail stating that it would clarify regarding the refund charges and the basis for deductions. This OP cannot be held for deficiency of service, negligence, harassment and unfair trade practice since the OP has ensured that the tour was conducted diligently and has taken care of every situation to the best of its abilities. The OP is not liable to pay any amount to the complainants and hence it is prayed to dismiss the complaint with cost.
4. So from the averments of the complaint of the complainants and objection of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, the OP has committed negligence, deficiency service, and due to that they have suffered harassment, mental agony and inconvenience while they were on Kashmir trip?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the affirmative
Point no.2: The complainants are entitled to
Rs.11,000=00 towards helicopter tickets charges, Rs.15,000=00 towards compensation and Rs.2,000=00 towards cost of litigation.
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant no.1 has filed his affidavit on behalf of himself and on behalf of other complainants as evidence and produced ten documents. On the other hand, one Shambhu Roy, the constituted attorney of the OP has filed his affidavit and produced four documents with list dated 27-2-2012 and one more document memo dated 19-6-2012. We have heard the arguments of both parties, and we have gone through the oral and documentary evidence of both sides meticulously.
7. One Jagadish, who being the complainant no.1 has filed his affidavit by way of evidence on behalf of himself and on behalf of other complainants stating that, the OP has announced highlights of Kashmir package trip to Kashmir for 6 nights and 7 days i.e. i.e. Srinagar-Pahalgam-Katra-Vaishnodevi-Jammu from Bangalore and trip commences from date on 27-4-2011 to 3-5-2011 and he and other complainants being one family members have accepted the trip programme and become ready to go to the trip, and accordingly on 18-4-2011 the OP has issued letter stating details of trip and payment of tour cost per person Rs.18,722 =00 X 10 in total Rs.1,87,220=00 and helicopter tickets INR Rs.2,750=00 X 11 = 30,250=00 in total all Rs.2,17,470=00 and the complainant’s have been paid the said amount to the OP and on 25-4-2011 the OP has issued another letter stating that programme has been confirmed and details of accommodation arrangement are made. The itinerary details of flight numbers were furnished by OP, and from Bangalore to Delhi to Srinagar own arrangement from the complainants. The trip starting from Srinagar on 27-4-2011 to 3-5-2011 the OP has also issued letter of service voucher stating that Meena Travels will provide service at Srinagar and he and other complainants have gone for tour as per scheme of OP, but there was no proper service at Kashmir, and he and other complainants have faced several problems in tour programme, and after return back to Bangalore on 9-5-2011, he has brought to notice of OP the problems and carelessness faced at tour programme by email and it is informed to OP that as per itinerary they were supposed to travel from Srinagar to Jammu by Road on 1-5-2011 and Srinagar to Pahalgam on 30-4-2011. But two days the Jammu-Srinagar highway was closed for public by government due to shifting of the darbar, and this fact was not informed to him, the tour programme was wrongly made without considering darbar. So there is a deficiency of service and there is a negligence on the part of the OP. The helicopter tickets at Katra were not furnished but only falsely promised that tickets were ready at 11.30 darshan of Vaishnodevi temple, but the OP or their agent at Katra did not provide service as undertaken by OP and even they have not issued any helicopter tickets to him and there is deficiency of service on the part of the OP. On 16-5-2011 the OP has issued letter stating that OP collected Rs.2,000=00 X 11 total Rs.22,000=00 from11 persons which is not correct. In fact the total amount collected was Rs.30,250=00 being costs of helicopter and this is also admitted in the version filed by the OP, but the OP refunded only Rs.19,250=00 on 6-6-2011, but he has not refunded still the balance amount Rs.11,000=00 in respect of four persons, and he sent an email to the OP to refund the balance amount, but the OP ha denied the payment of balance amount. The OP has admitted the delay in refunding the amount and sought for sincerely apologies and also wrong calculations were made in the letter and this shows that there is negligence and deficiency of service on the part of OP and in this regard the OP has issued a letter dated 17-5-2011 the OP sent a letter by mail and he has issued another letter to refund full amount and pay the compensation for the trouble given to the family members i.e. ladies and children were made to spend time on road and missed food and inconvenience physical and mental agony due to poor planning tour by the OP and the OP has not refunded the amount, so the present complaint is filed so order be passed as prayed in the complaint.
8. By reading the averment of the complaint and evidence of the complainant as mentioned supra, it is explicitly clear that, the complainant no.1 has tendered his evidence in conformity with the averment of the complaint. Let us have a look at the relevant documents of the complainant to know whether the oral testimony of the complainant no.1 is corroborated by the documentary evidence or not. Document no.1 is the copy of details of programme of Srinagar-Pahalgam-Katra-Vaishnodevi-Jammu trip from 27-4-2011 to 3-5-2011 and the said tour programme has 6 nights and 7 days and it is called as Kashmir Package. Document no.2 is the copy of letter given by the OP giving details of trip and payments of tour cost per person was Rs.18,720=00 and helicopter cost was Rs.2,750=00 for 10 persons tour charges would be Rs.1,85,720=00 and Helicopter ticket for 11 persons was Rs.30,250=00. Document no.3 is the copy letter of the OP informing the confirmation status of tour programme to the complainant. Document no.4 is the copy of itinerary given by the OP. Document no.5 is the copy of letter issued by the OP dated 6-6-2011 stating that they are refunding Rs.19,250=00 by cheque against un-utilized Vaishnodevi helicopter cost, and it is towards full and final settlement of all claims in respect of tour programme. Document no.6 is the copy of service voucher issued by the OP in the name of the complainant no.1 informing the accommodation and other arrangements made for the complainant. Document no.7 is the copy of email letter sent by the complainant no.1 dated 9-5-2011 to one Sandeep/Jayashree stating that itinerary was made carelessly and helicopter tickets was not provided to them by one Sharma and made them to suffer and later they made their own arrangements and their family members were made to suffer, and relation between their family members spoiled due to his decision of choosing SOTC this time instead of choosing Thomas Cock and due to that their health was spoiled and how he can compensate for all the losses, besides reimbursing helicopter ticket cost of Rs.30,250=00 paid by them and they have failed in organizing a good tour and atleast his expectation now is to act fast and give them justice. Document no.8 is the copy of email sent by Sandeep Modak dated 16-5-2011 in the name of the complainant no.1 refunding Rs.16,000=00 towards un-utilized helicopter tickets and sincerely apologies for a delay of refund. Document no.9 is the copy of email sent by one Jayashree dated 17-5-2011 in the name of the complainant no.1 stating that Mr.Sandeep is aware of the refund and all of them are working together. Document no.10 is the copy of email sent by the complainant no.1 to one Jayashree dated 8-6-2011 calling upon her to pay the balance of tickets price, and also compensation of Rs.25,000=00 per person and to settle the said amount within 10 days, failing which, they will take legal action and refer the matter to consumer court. Document no.11 is the copy of email sent by Jayashree to the complainant no.1 dated 11-6-2011 informing that they will confirm by Tuesday with regards to balance of refund towards helicopter tickets.
9. By making careful scrutiny of the documents of the complainants as mentioned above, it is no doubt true that, the complainants have availed Kashmir tour package arranged by the OP and after returning from the Kashmir tour, the complainants have sent emails to the OP expressing some inconvenience and trouble faced by them, on account of not making tour programme properly and satisfactorily as per the itinerary. The complainants were supposed to travel from Srinagar to Jammu by road on 1-5-2011 and Srinagar to Pahalgam on 30-4-2011 but two days i.e. 30-4-2011 and 1-5-2011 Jammu and Srinagar highway was closed for public by government due to shifting of the darbar and on account of it, the complainants were made to suffer both physically and mentally and also financially. In fact, before making tour programme of Kashmir package, the OP ought to have made enquiry with the government of Kashmir and arranged the programme. Instead of doing so, the OP has fixed the package of Kashmir tour programme by fixing the programme. The act of the OP in fixing the Kashmir package tour programme without making enquiry with the government of Kashmir amounts to negligence and deficiency of service and due to that the complainants were made to suffer like anything on these two days i.e. 30-4-2011 and 1-5-2011. Besides the complainants have stated both in the complaint and during the course of evidence of the complainant no.1, that they have paid Rs.30,250=00 towards helicopter tickets cost and helicopter tickets were not handed over to them.
10. Likewise, the OP in his version at para no.12 stated admitting that, they have collected Rs.30,250=00 in total towards helicopter tickets and they have deducted rightly Rs.11,000=00 in view of four complainants availing the helicopter service. But unfortunately, the OP has not explained the name of the complainants who availed the helicopter service on that day, and so also no documentary evidence is placed before the forum by the OP to show that the complainants have availed the helicopter service on that day, so they have deducted Rs.11,000=00. In absence of vouchsafing any documentary evidence by the OP, it is superfluous to reiterate on the basis of oral evidence of the OP that, four complainants have availed the helicopter service on that day. Since, the OP has not made arrangement to hand over the helicopter tickets to the eleven complainants. So as per his reply to refund of the price of 11 tickets to the complainants, out of total price of eleven helicopter tickets i.e. Rs.30,250=00, the OP has refunded Rs.19,250=00 to the complainants and still the balance amount of Rs.11,000=00 is payable to the complainants by the OP towards helicopter tickets charger.
11. One Shambhu Roy has deposed in his evidence on behalf of the OP that, the OP was not aware of the highway being closed for public and made every efforts to make the complainants journey smooth, and such a circumstance is a force majeure and the OP cannot held responsible and the OP has managed to arrange for the tickets and had asked the 1st complainant to go along with the other complainants to Bali resorts by 8 am on 2-5-2011 instead the 1st complainant went there alone that too at 10 am instead of 8 am and informed that the other members were sleeping and due to the delay by the complainants they could not avail the helicopter trip excepting four members and the OP cannot be held for deficiency of service, negligence etc. The tour was conducted diligently and had taken care of every situation to the best of its abilities. The OP is not liable to pay any amount to the complainants.
12. Let us have a look at the relevant documents of the OP. Document no.1 is the copy of power of attorney executed by the OP in the name of Shambhu Roy. Document no.2 is the copy of booking form filled by the complainants dated 13-4-2011, the next document of the OP is the copy of receipt issued by the OP in the name of the complainant no.1 for having received a cheque for Rs.5,000=00 towards booking. The last document of the OP is the copy of email sent by the 1st complainant to OP dated 11-6-2011 calling upon to pay the balance of helicopter tickets price as tour programme conducted by the OP was too bad, and they suffered a lot during the tour programme.
13. The oral evidence of the OP that, he has taken maximum care and diligence in making arrangement of tour programme and there is no negligence or deficiency of service on their part is not fortified by any documentary evidence. So taking the oral and documentary evidence of the complainants and compare the same with the material evidence of the OP, it is made manifest that, the oral and documentary evidence of the complainants are more believable trustworthy and acted upon than the material evidence of the OP. The complainants who come to the forum seeking relief have proved this point satisfactorily by placing clear cogent and consistent material evidence. So we answer this point in a affirmative.
The complainants have paid Rs.30,250=00 towards cost of helicopter tickets price and out of it, the OP has refunded Rs.19,250=00 on 6-6-2011 the balance amount is of Rs.11,000=00 towards cost of helicopter tickets to be refunded by the OP to the complainants. So the complainants are entitled for Rs.11,000=00 towards the balance amount of helicopter tickets price. So on account of closure of Jammu-Srinagar highway on 30-4-2011 and 1-5-2011, the complainants were made to suffer on the said days both physical and mental. So also while undergoing the tour, the complainants must have undergone some inconvenience and hardship on account of not making tour programme systematically. So for undergone hardship and inconvenience by the complainants during the tour programme, it is just and proper to award nominal compensation of Rs.15,000=00 in total to the complainants towards inconvenience, hardship and mental agony suffered by them while undergoing tour programme, on account of negligence and deficiency of service on the part of the OP. The complainants are entitled to Rs.2,000=00 towards cost of litigation. The OP is directed to pay the said amount to the complainants within 30 days from the date of the order, failing which, the OP shall pay the said amount to the complainants with 10% interest per annum on the said amount from the date of the order to till the date of realization.
ORDER
The complaint of the complainant is partly allowed. The OP is directed to refund Rs.11,000=00 (Rs. Eleven thousand only) to the complainants towards the balance of Helicopter tickets charges.
The OP is further directed to pay Rs.15,000=00 (Rs. Fifteen thousand only) to all the complainants in total and Rs.2,000=00 (Rs.Two thousand only) to the complainants towards compensation and cost of litigation respectively.
The OP is directed to pay the said amount to the complainants within 30 days from the date of the order, failing which, he shall pay the said amount to the complainants with 10% interest per annum from the date of the order to till the date of realization.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 28th day of September 2012.
MEMBER MEMBER PRESIDENT
