DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No.7 of 13.1.2020

                                      Decided on: 8.10.2024

1. Ashok Kumar Bhalla son of Sh.Sant Sarup Bhalla
2. Madhu Bhalla wife of Ashok Kumar

Both residents of House No.161/2, Raja Gurdit Singh Street, Near Charanjiv Ashram, Patiala.

                                                                   …………...Complainants

                                      Versus

1. SOTC Travel Limited B-33, Ist Floor, Inner Circle Connought Place, New Delhi-110001 through its M.D.
2. SOTC Travel Limited Surya Complex, SCO -19, Ground Floor, Opposite Gopal Sweets, Leela Bhawan, Patiala Punjab 147001 through its Authorized Representative.
3. Rahul Kumar, C/o SOTC Travel Limited Surya Complex, SCO-19, Ground Floor, Opposite Gopal Sweets, Leela Bhawan, Patiala Punjab 147001 through its Authorized Representative.

                                                                   …………Opposite Parties

Complaint under the Consumer Protection Act

QUORUM

                                      Sh.Pushvinder Singh, President

                                      Sh.G.S.Nagi, Member   

ARGUED BY

                                       Sh.J.D.Bansal, counsel for complainants.

                                      Smt.Kusum Sood, counsel for OPs.

ORDER

                                      PUSHVINDER SINGH, PRESIDENT

1. The instant complaint is filed by Ashok Kumar Bhalla and Madhu Bhalla      (hereinafter referred to as the complainants) against SOTC Travel Limited (hereinafter referred to as the OP/s) under the Consumer Protection Act ( for short the Act).
2. It is averred in the complainant that the complainant being adduced by the OPs agreed to travel Australia on couple visa through the OPs company and in this regard paid/transferred an amount of Rs.1,20,000/-  in the account of the OPs on 16.9.2019, as part payment out of the total amount of Rs.4,50,000/- and the remaining amount was to be paid after grant of couple visa. That it was assured by the OPs that in case the couple visa was not granted the amount paid by the complainant shall be refunded. That in the month of October,2019  it was disclosed by the OPs that visa of Mrs.Madhu Bhalla only has been received on 4.10.2019 and the visa of Ashok Kumar Bhalla would be received at the earliest but on 22.10.2019 the OPs disclosed that the visa of Mr.Ashok Kumar Bhalla has been refused. It is averred that on the assurance of the OPs complainants spent money on their necessities i.e. suitcase, apparels etc. Not only this complainant Madhu Bhalla also obtained necessary sanction from her employer. It is averred that the purpose of couple visa was to travel together by the complainants.
3. It is further averred that complainants got served a legal notice dated 21.12.2019 upon the OPs through their counsel calling upon them to refund the amount of Rs.1,20,000/- and further to pay compensation of Rs.2,00,000/- on account of mental agony and harassment and also to pay Rs.15000/- as costs of legal notice but of no avail. It is averred that there is deficiency in service and mal practice on the part of the OPs. Hence this complaint with the prayer to accept the same by giving directions to the OPs to refund the amount of Rs.1,20,000/- ; to pay compensation of Rs.2,00,000/- for causing mental agony, harassment, inconvenience, financial loss to the complainant and also to pay rs.22,000/-as costs of litigation.
4. Upon notice, OPs appeared through counsel and filed written statement having contested the complaint by raising preliminary objections. It is pleaded that  the complainant have themselves  engaged the services of the OPs for a packaged Group Tour to Australia for 10 days and 9 nights, marketed as ‘Glimpse of Australia’ .The complainants had duly signed the booking form, terms& conditions and how to book rules, in acceptance thereof, which forms the concluded contract between the parties. It is further pleaded that the complainants are guilty of suppressing material facts including the fact that they were fully aware that in the event of cancellation of tour due to any reason whatsoever, including rejection of visa, the applicable cancellation charges were required to be paid by them, which was duly mentioned in the booking Terms and Conditions, How to Book Your Holiday Rules and the same were also duly communicated to the complainant through e-mail. It is further pleaded that the complainant on their own expressed their desire to book a packaged group tour to Australia and based on their requirements and preference, they opted for a tour marketed as “Glimpse of Australia” which was to depart from India on 15.11.2019 for 10 days and 9 nights and initially they paid a sum of Rs.1,20,000/-towards booking amount.
5. On merits, the OPs reiterated some facts taken in the preliminary objections which are not repeated for the sake of brevity. It is submitted that after the booking was done and initial booking amount was paid, the welcome email was sent to the customers/tour participants which contains the basic details about the booking and includes the payment schedule. Thereafter a document check list was provided to the complainant, which is part of the basic guidance/assistance provided by the OPs. However, the complainants cannot have any control over the content of the documents supplied which will be individual to each. It is averred that visa application of complainant No.1 i.e. Ashok Kumar Bhalla was rejected by the concerned authority of the Australian High Commission, in exercise of their discretionary and sovereign powers on the basis of the personal and financial information of the complainant and the OPs are not liable for the same. It is further averred that a detailed reply of legal notice was sent by the OPs through registered post on 6.1.2020. It is submitted that on the request of the complainants, their tour was cancelled on 22^nd October,2019 and the same was intimated to the complainants through email on the same day. It is further averred that since the tour was cancelled 24 days prior to the departure, therefore, Rs.1,00,000/- per person cancellation charges were applicable as per the booking terms and conditions but as an exception and being a customer centric organization, the OPs agreed to reduce the cancellation charges to Rs.40,000/- and AUD 360 per person, plus 5% GST on total cancellation charges but the complainants did not accept the same. It is averred that there is no deficiency in service and mal practice on the part of the OPs. After denying all other averments, OPs have prayed for the dismissal of complaint.
6. In evidence ld. counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant alongwith documents i.e. Ex.C1 copy of bank statement, Ex.C2 copies of letters (colly),Ex.C3 copy of NOC from the department,Ex.C4 copy of legal notice, Ex.C5 to Ex.C7 postal receipts and closed evidence.
7. The ld. counsel for OPs has tendered in evidence Ex.OPA affidavit of Harshdeep Singh Manager, Sales SOTC Travel alongwith documents Ex.OP1 to Ex.OP6 and closed the evidence.
8. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
9. The complainants have alleged that he had approached the OPs for arrangement of travel visa to Australia and the deal was settled for an amount of Rs.4,50,000/- approximately for both the complainants. An advance of Rs.1,20,000/- was then made by the complainant to the OPs on 16.9.2019 as per Ex.C1. The complainants have submitted that the OPs assured them that in case their couple visa is not approved then the amount already paid by them would be refunded/repaid completely. The complainants have then alleged that in the month of October/2019 it was conveyed to them that visa of Madhu Bhalla, i.e. complainant No.2 has been approved on 4.10.2019 and visa of Ashok Kumar Bhalla i.e. complainant no.1 has not been received yet. The approval status in respect of complainant No.2 is Ex.C2 and rejection letter dated 22.10.2019 of visa of complainant No.1       is also Ex.C2.The complainants have alleged that the purpose of the couple visa was to travel together by the complainants as they are companion of each other in old age and cannot travel alone. It is alleged that the complainants were befooled by the OPs. The complainants have then alleged that a legal notice dated 21.12.2019,Ex.C4 was then served upon the OPs for the refund of Rs.1,20,000/- which was paid as an advance for the grant of their visa alongwith compensation and legal expenses but no response was received from the OPs. The complainants have thus prayed for refund of Rs.1,20,000/- alongwith compensation and litigation expenses.
10. The OPs  in their written statement and affidavit of Harshdeep Ex.OPA have taken the objections that the complainants have voluntarily and consciously  engaged the services of the OPs for  a packaged group tour to Australia for 10 days 9 nights, marketed as Glimpse of Australia. They have further submitted that the OPs organized packaged group tours departing on predetermined dates and for the facility of its customers provide basic assistance in filing of the Visa applications  that is required to travel to the country/countries included in the tour. However, it has been clearly explained to the perspective travelers  that possession of requisite travel documents including passport and visa is the ultimate responsibility of the passenger and OPs are not responsible in any manner if the passenger fails to undertake the tour due to rejection or delay of the required visa. Since grant or rejection of visa is the discretion of the concerned consulate/embassy and OPs have no control or influence on the same.
11. It has further been submitted that the complainants had made enquiry at the branch office of the OPs at Patiala and expressed their desire to take the package to Australia and opted for a tour marketed as Glimpse of Australia which was to  depart from India on 15.11.2019 for 9 nights 10 days and paid a sum of Rs.1,20,000/- towards booking amount. The said booking was made by the complainants after they were fully satisfied with the terms and conditions of the booking as well as  “ How to book your Holidays Rules” which confirms a part of the contractual relationship between the parties. The booking terms and conditions is Ex.OP1 and the tour schedule marketed as Glimpse of Australia is Ex.OP2.The said tour schedule is sent through an email to the perspective travelers which contains the basic details about the booking and includes the payment schedule and other terms and conditions.
12. The OPs have submitted that a check list is then provided to the perspective travelers to help them to prepare the documents required for applying of visa which is merely a basic guidance / assistance as the OPs have no control over the grant of visa. The booking terms and conditions  provided by the OPs  contained the conditions in-relation to visa application as well as forfeitures of booking amount which are reproduced  as under:

“ All tour participants should hold valid travel viz passport and visas for travel. It will be the tour participant’s responsibility to apply for visa with complete set of documents required by the embassy/consulate within the stipulated period as advised by the company. In the even the visa application made by tour participant or by the company on his/her behalf is rejected by the consulate due to either inadequate supporting documents or for whatever reason or where the visa could not be processed due to late submission of application by the tour participant the company shall not be liable for the eventuality and lead to forfeiture of booking amount paid and no claim whatsoever shall be entertained for the same………

FORFEITURE OF BOOKING AMOUNT

The company shall be within its rights to forfeit the non-refundable interest free booking amount paid by tour participant alongwith the completed booking form for confirmation of the seats on the booked tour and also to recover scale of cancellation charges set out in the ‘How to Book’ section of the brochure a)….b) in the event his/her visa of any country(s) is not granted…..”

13. The OPs have submitted that due assistance was granted to the complainants for submission of the visa application to the concerned embassy. However, the visa of complainant No.1 was denied by the embassy as per denial letter,Ex.OP3. The OPs have relied upon cancellation clause for cancellation of the tour which is reproduced as under:
14.  

As we book services such in advance and are bound to honour the payment commitments to service providers, cancellation of services earmarked for a particular departure results in the company losing money depending upon the time of communication of cancellation to the supplier. Therefore, any cancellation of tour booking by tour participant will attract cancellation charges as specified by the company.

The Cancellation charges contained in the How to Book Your Holidays document is reproduced herein as below:

14. The decision regarding the cancellation of the visa was conveyed to the complainants on 22.10.2019. However, no request for cancellation was received from the complainants. Even though the date of cancellation of visa  is taken as the request for cancellation of the tour. Even then the cancellation is deemed to be effective from 22.10.2019 i.e. 24 days prior to the departure of the tour and an amount of Rs.1lac each was chargeable on account of cancellation of the tour. However, no other charges were demanded from the complainant. The OPs have submitted that there is no deficiency in service on the part of the OPs and have prayed for the dismissal of the complaint.
15. We have gone through the rival submissions of the parties and have also gone through the record/evidence placed on the file thoroughly.
16. Admittedly the complaints have deposited an amount of Rs.1,20,000/- as an advance for group tour to Australia under Glimpse of Australia which was to start from 15.11.2019.Formalities  regarding the tour were explained to the complainants and necessary assistance for the application of visa was also provided by the OPs to the complainants. Complainants in their complaint have themselves submitted that they had travelled  abroad on some earlier occasions through the OPs and they were fully satisfied with the services of the OPs. The visa application of both the complainants was duly processed by the concerned embassy and visa of complainant No.2 i.e. Madhu Bhalla was approved as proved by the complainant vide Ex.C2. However, visa of complainant No.1 i.e. Ashok Kumar Bhalla was denied as proved by the complainants as well as the OPs. The reason attributed for the denial of visa is that the Officer incharge of the department of Home Affairs Govt. of Australia was not satisfied with the employment and income of the applicant so was of the considered view that grant of visa in the tourism category to the complainant is not justified and the same was rejected.
17. We are of the opinion that the OPs have no control over grant or denial of the visa to the perspective traveler and it is a sole discretion of the embassy . It is also a fact that the visa of complainant no.2 was granted whereas visa of complainant no.1 was denied. The grant or denial of visa does not a part of form of the contractual obligation between the complainant and the OPs as per the documents produced by the complainant as well as the OPs. Even the complainant has failed to produce any assurance having been given by the OPs regarding the grant of visa.
18. We are of the considered view that there is no deficiency on the services provided by the OPs and as the tour was deemed to be cancelled on 22.10.2019 i.e. 24 days prior to the departure of the tour as such the OPs were entitled for recovery of cancellation charges to the tune of Rs.1lac per person as per the cancellation policy under the terms and conditions of the policy of the agreement. However, as stated above the complainants were offered settlement of cancellation charges after deduction of cancellation charges to the tune of Rs.40,000/- + 360 Australian $ alongwith GST of 5%, which in our opinion works out to be  more than Rs.1,20,000/- which was not accepted by the complainants. As such we find no deficiency in service on the part of the OPs and the complainant is not entitled for any refund on account of cancellation of the tour thereof due to non grant of the visa to complainant No.1. The complaint is accordingly dismissed with no order as to costs.
19.           The instant complaint could not be disposed of within stipulated period due to heavy rush of work and for want of Quorum from long time.
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                                              G.S.Nagi                PUSHVINDER SINGH

                                              Member                          President