BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 15^th DAY OF JULY, 2022

CONSUMER COMPLAINT NO.368/2018

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Mahesh Aiyanna Berera,

S/o B.M.Aiyanna,

Aged about 39 years,

Residing at No.4/5,

Seetha Kuteer,

Opp Royal Residency Apartment,

(Complainant Rep by Sri.Lakshmish G, Adv)

V/s

SOTC Travel Private Limited,

Urmi Estate, No.95,

Ganpatrao Kadam Marg,

Rep by its Managing Director.

Local Office at:Malik’s Embassy No.6,

Off Infantry Road,

Bangalore-560052,

Rep by its Branch in Charge.…..OPPOSITE PARTY

(Represented by Mrs.Sukruta R, Adv)

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint u/s 12 of the Consumer Protection Act-1986 seeking for a direction to the opposite party for refund of a sum of Rs.6,15,000/- received as booking amount along with interest at the rate of 24% p.a.  from the date of its payment till realization, a sum of Rs.25,000/- as compensation and a sum of Rs.50,000/- towards additional tour cost paid by the complainant to the second tour operator in excess of the amount agreed with the opposite party, a sum of Rs.5,00,000/- quantified loss of 30% of decreased tour period and a sum of Rs.5,00,000/- towards pain and suffering and mental harassment suffered and Rs.1,00,000/- towards cost of the proceedings. 

2. It is not in dispute that the opposite party is a travelling agency formerly known as Kuoni Travel (India) Pvt. Ltd.,) and it was a company of great competence, repute and had acquired expertise in guiding, organizing and arranging international travel and travel permits/visa required for the same.  Further, it is not in dispute that on 06.08.2017 the complainant had attended a travel fair organized by the opposite party at Hotel Lalit Ashok, High Grounds, Bangalore.  On the said date itself, the complainant had booked the travel for his family of 10 members under “European Spleandors Escorted Tour (Dussehra) Offer” for travel dates in the month of September-2017 and had paid a sum of Rs.10,000/- per traveller as a spot booking amount.  Further, it is not in dispute that on 18.08.2017 the complainant had paid a sum of Rs.5,15,000/- towards tour cost.  Further, there was several email correspondence with regard to the tour in between the complainant and opposite party.  Further the complainant had also paid a sum of Rs.8,000/- per passenger in a total sum of Rs.80,000/- towards visa fee.  Further, it is also not in dispute that out of the 10 members, 4 members’ visa has not been obtained by the opposite party.  Further, it is not in dispute that the complainant had dropped the tour program with opposite party and arranged his tour through Fiesta Vacations Private Limited the other traveller.

3. It is the contention of the opposite party that the opposite party is not responsible to issue visa and did not promise the complainant that it would do so.  Further the complainant had fraudulently booked another tour without payment of full booking amount and cancellation of the tour with the opposite party in the first place.  Hence, there is no deficiency of service on the part of the opposite party and sought to dismiss the complaint.

 4.  To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked Ex.P1 to P12 documents.  The authorized person of opposite party (RW1) has filed affidavit in the form of his evidence in chief.

5. Counsel for opposite party has filed written arguments.   

6. Heard the arguments.

         7. The points that would arise for consideration are as under:

i) Whether the complainant proves that there is deficiency of service on the part of the opposite party ?

    ii) Whether the complainant is entitled for the  

         compensation as sought ?

     iii) What order ?

   8.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

9. POINT NO.1:- PW1 & RW1 have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  It is the contention of the learned counsel for the complainant that the opposite party had promised the issuing of visas to all the 10 members and would arrange the tour but had obtained the visa only for 6 members of the family.  Further for mere because of non-submitting the proper documents, the 4 visas came to be rejected.  Further even though it was rejected on 13.09.2017, on 22.09.2017 only it was informed to the complainant.  In EX.P2 computer generated print out of email communication between complainant and opposite party, it appears that the opposite party had sent a mail on 19.08.2017 stating that the departure date was 27.09.2017 and the tour cost included cost of the visas needed to participate in the tour.  The travel date of the complainant and his family members was on 27.09.2017 for a period of 9 nights and 10 days.  As per EX.P3 email dt.21.08.2017, the opposite party asked the complainant to pay additional charges of Rs.2,000/- per person with Visa fees.  Further through mail dt.30.08.2017 the complainant was asked to carry visa fee per person of Rs.80,000/- cash, it shall be Rs.8,000/- per person. 

10. Further on 24.08.2017 the complainant handed over all the original passports, photographs and documents including his family members to the opposite party for processing visa.  Further on 28.08.2017 the opposite party had addressed an email seeking confirmation for flight ticket booking and issue of tickets in flights of Air India.  On 30.08.2017 the opposite party directed the complainant and his family members for visa interview on 31.08.2017 at 8.00 a.m and asked to carry Rs.80,000/- cash for visa fee and on 31.08.2017 the complainant appeared in visa interview at 8.00 a.m and carried Rs.80,000/- in cash.  Further from 13.09.2017, the opposite party kept on requiring the complainant to furnish various documentation for visas processing and the complainant had complied the demands.  On 16.09.2017 one Mr.Rohit addressed an email and informed that the visas of the complainant and his family were rejected notwithstanding the same, the representatives of opposite party kept on convincing the complainant that they were looking after the matter and assured that visas would be granted.  Further on 22.09.2017 the complainant was informed that the visas applications were rejected and opposite party had handed over all documentations and passports to the complainant at their Infantry Road office and the complainant was shocked to know the said fact. 

11.  It is the further contention of the learned counsel for the complainant that because of the negligence of the opposite party in processing the visas, the visas of 4 members came to be rejected.  It is the contention of the opposite party that issue of visa was not in the hands of the opposite party and the traveller has to obtain the visa himself, as per the terms and conditions duly signed by the complainant.  We feel if such would have been the condition as to why the opposite party assured the complainant that they would arrange the visa and as to why the cost of the visa was also included in the tour charges.  Further even if such contention was incorporated, we feel it is only an unilateral one and one sided that too in favour of the opposite party.  In addition to that the opposite party had obtained the visas in favour of 6 members of the complainant’s family and the visas in favour of 4 members were rejected.  It is not the case of the opposite party that the complainant did not                      co-operate for getting visas and the complainant did not produce necessary documents required.   Apart from that the complainant booked visas for 4 members separately from some other agencies and purchased Air ticket for 10 members separately and travelled on 29.09.2017 instead of 27.09.2017 as per schedule fixed by the opposite party.  Further even though the visas of 4 members were rejected on 13.09.2017 only on 21.09.2017 the complainant was informed and his tour was fixed to departure on 27.09.2017.  Hence, we feel there is no merit in the contention of the learned counsel for the opposite party that the complainant and his family members themselves have to obtain the visas.  Hence, we feel there is deficiency of service on the part of the opposite party in not getting the visas and not completing the tour as per tour program as assured.  Hence, we answer this point in affirmative. 

12. POINT No.2:- The complainant claimed a sum of Rs.6,15,000/- received by the opposite party as booking amount along with interest at 24% p.a.  There is no dispute that the opposite party had received said amount.  It is the contention of the learned counsel for the opposite party that the said amount is a non-refundable one if booking amount for 10 members.  The actual cost of the tour was of Rs.15,80,000/- and the balance amount was of Rs.9,65,000/- has not been paid by the complainant to do the booking arrangements and that has been done by the opposite party on his part.  Further the complainant had booked on a tour departing on 27.09.2017 for which full tour payment should mandatorily have been made 45 days prior to departure i.e., 14.08.2017 as per the booking terms and conditions and the complainant was not very serious about taking the said tour from the opposite party and to shopping for a visa to Europe and was not a genuine traveller.  Further since the complainant had cancelled the tour vide an email dt.26.09.2017, one day prior to the tour departure, attracts 100% cancellation charges as per the booking terms and conditions.  We feel since the opposite party had informed the complainant about the rejection of visas of 4 members it was in the knowledge of the opposite party that the complainant and his family members cannot travel.  Since the opposite party did not get the visas to the entire family members of the complainant, the complainant had cancelled the tour and booked the tour from some other agency and completed the tour.  Hence, keeping-up of all the money of the complainant by the opposite party amounts to unjust enrichment.  Hence, the opposite party shall return the said amount of Rs.6,15,000/- with interest.  The interest claimed at the rate of 24% p.a. is an exorbitant one and the interest at the rate of 9% would meet justice.  Hence, the opposite party shall return the said amount with interest at 9% p.a. from the date of payment made to the opposite party.

13. Further the complainant claimed a sum of Rs.80,000/- which he has paid towards visa charges on opposite party. It is the contention of the complainant that in the package of tour the visa charges have also been included.  Admittedly, the complainant did not pay the entire package tour amount.  Further the opposite party had obtained visa for 6 members.  Therefore, we feel the complainant is not entitled for the refund of visa charges.  Apart from that the complainant had paid the said amount to the authority and not to the opposite party directly. 

14. Further the complainant sought for a sum of Rs.25,000/- as compensation and expenses incurred towards repeated phone calls and personal visits for the refund of Rs.6,15,000/- and a sum of Rs.50,000/- additional tour cost paid by the complainant to second tour operator in excess of the amount agreed.  According to PW1 they had travelled through Fiesta travels and had paid Rs.16,30,000/- towards air ticket charge and the cost of the air ticket was Rs.15,80,000/- which was booked by the opposite party.  The complainant has produced copy of the tickets vide EX.P12 for having travelled through Fiesta Vacations Travels. Hence, the complainant is entitled for difference amount of Rs.50,000/-.  Further the complainant has sought for a sum of Rs.5,00,000/- towards loss of 30% of the decreased tour period.  As per the travel program the complainant and his family members had to departure on 27.09.2017 and the complainant and his family members travelled through some other agency on 29.07.2017 and the tour program fixed by the 3^rd party was only 6 days and the tour program fixed by the opposite party was 9 days.  Hence, there was shortage of travel period and the complainant and his family members were deprived of the said program of 9 days.  Hence, we feel for that the complainant is entitled for a sum of Rs.30,000/-.  Further the complainant claimed a sum of Rs.5,00,000/- towards pain suffering and Rs.1,00,000/- towards cost of the proceedings.  We feel, the complainant and his other 9 members are in total entitled for a sum of Rs.30,000/- towards pain and suffering and Rs.10,000/- towards litigation cost.  Accordingly, we answer this point partly in affirmative. 

15.  POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

Complaint is allowed in part.

The opposite party is directed to pay a sum of Rs.6,15,000/- to the complainant with interest at the rate of 9% p.a. from the date of payment made by the complainant to the opposite party till realization.

The opposite party is directed to pay a sum of Rs.30,000/- to the complainant for the shortage of tour period for 6 days instead of the tour period of 9 days from the date of payment till realization.

The opposite party is directed to pay a sum of Rs.50,000/- incurred by the complainant as additional tour cost paid to the 2^nd tour operator.

The opposite party is directed to pay a sum of Rs.30,000/- towards pain and suffering and Rs.10,000/- towards litigation expenses to the complainant. 

The opposite party shall comply the order within 30 days. In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.1,20,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 15^th day of July, 2022)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA, K)    
•  

//ANNEXURE//

Witness examined for the complainants side:

Sri.Mahesh Aiyanna Berera, the complainant has filed his affidavit.

Documents marked for the complainant side:

1. The computer generated print out of complainant’s bank statement in respect of his account maintained at HDFC Bank.

2. The computer generated print out of e-mail communication between the complainant and opposite party.

3. The computer generated e-mail communications.

4. The WhatsApp messages in respect of the conversation between the complainant and representative of the opposite party.

5. The 10 courier envelop covers of VFS.Global.

6. The computer generated print out to show the travel by the complainant and his 9 family members through different travel operators.

7. The computer generated e-mail correspondence made by complainant with the opposite party praying for refund of the tour amount.

8. Three letters which were sent individually to Berera Madhu Prarthana, Berera Madh Jesta Dechamma and Berera Madhu Ronak Thimmaiah all dt.13.09.2017 from the consulate of Italy in Mumbai.

9. The computer generated bank statement in respect of complainant’s account maintained at HDFC Bank.

10. The scanned copies of 14 receipts bearing dates some as 26^th and some as 28^th of September,2017.

Witness examined for the opposite party side: 

Sri.Dinesh Byndoor, Authorized Signatory of opposite party has filed his affidavit.

Documents marked for the Opposite Party side:

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA, K)    
•