Date of Filing:  02.02.2018

Date of Judgment: 12.11.2021

Mrs. Sashi Kala Basu, Hon’ble President.

This consumer complaint is filed by the complainants namely Sandip Basu and Sumita Basu under Section 12 of the C.P Act , 1986 against the opposite parties  ( referred to as O.Ps hereinafter) namely SOTC Travel Services Private Limited, formerly known as KUONI Travel (India Private Limited), Mr. Palash Sen, of M/s SOTC Travel Services Private Limited formerly known as Kuoni Travel (India Private Limited) and  Mr. Zahid Rafique, Sr. Manager Sales working for gain at SOTC ,alleging deficiency in service on their part.

The case of the complainant, in short, is that from an advertisement published in the Newspaper complainants came to know that O.P no.1 would conduct tour of 18 days towards Scandinavian and East Europe and schedule date of journey for said tour was on 24.05.2016 and schedule date of return was on 12.06.2016. When the complainants contacted the office of the O.P no.1 at Alipore, O.P no.2 identified himself as Manager of the O.P no.1 company . The O.P no.2 represented that they will conduct the aforesaid tour on payment of Rs.5,60,000/-. O.P no.2 also assured the complainants that visa, passport etc. Would be done before the end of March, 2016. So, complainants paid an advance of Rs.1,00,000/- on 10.11.2015 to the O.P no.2 and further paid Rs.1,00,000/- on 19.1.2016 . On being advised by the O.P no.2 , complainants handed over the bank account . But inspite of the same and payment of Rs. 2 lacs, the O.P no.2 did not take necessary steps for obtaining a valid single entry Schengen stain Visa, though as per terms and conditions it was mandatory to do the Visa through the O.P no.1. Due to negligence on the part of the O.P no.2 , ultimately the complainants had to take passport on payment of tatkal fee. The complainants requested the O.P no.2 to defer the date of tour but he created pressure on the complainants to avail the journey on the schedule date, otherwise the amount paid would be forfeited in total. On 24.4.2016 ,the complainants received the passport but they were informed by the O.P no.2 that Norway Visa was not available prior to 13^th May, 2016. For the said reason complainants were pressurised and compelled to take the Germany Visa on payment of extra amount of Rs.30,000/- for diversification of the tour. Complainants were assured that at Berlin, Hotel would be arranged within 3-5 kilometres from Berlin Airport. But in fact the hotel was arranged by the O.P no.2, 32 kilometres away from the Tegel Airport. Complainants by various email requested the O.Ps to change the hotel . But their requests were turned down. For the said hotel which was at a distance of 32 kilometres, the complaints had to spend a sum of Rs.9600/- for to and fro to the hotel. Due to the act of the O.Ps and the deficiency in service on their part, the complainants have suffered the loss of total sum of Rs. 2,45,094/- . Thus , the present complaint has been filed by the complainants praying for directing the O.Ps to pay the complainants a sum of Rs.75,094/-  towards money paid for passport and visa, towards  diversification charge of plane towards Berlin for staying 2 days extra, Luggage cost at Budapest Airport, 2 days hotel cost at Berlin , expenses incurred towards taxi fare from Berlin airport to hotel and back paid by Euro, food cost for 2 days extra paid and Airfare from Budapest to Berlin for 2 persons  and further prayed for directing the O.Ps to pay further sum of Rs. 1,50,000/- as compensation and litigation cost Rs.20,000/-.

Complainants have filed the documents, payment receipts, email exchanged, itinerary, copy of legal notice sent by the complainant and documents relating to complaint filed before the Consumer Grievance Cell.  

The case has been contested by the O.P nos. 1 and 3 and O.P no.2 separately. The O.P no.2 by filing written version has denied the allegations made against him ,contending specifically that the alleged tour was scheduled on 24^th May, 2016 to 12.6.2016 . But the O.Pno.2 had left the O.P company SOTC Travel Services private Limited formerly known as KUONI Travel (India Private Limited ) and joined Cox & Kings Limited as a Manager on 2.6.2016 and as such he had no liability against the allegations levelled against him.

O.P nos. 1 and 3  by filing separate written version have denied all the allegations and contended that this Commission lacks territorial jurisdiction to try the case as the parties by contract conferred the exclusive jurisdiction upon the courts at Mumbai . It is further contended that when the complainants contacted the O.P company to participate in the tour Scandinavian and East Europe, they were provided with all the relevant and material information pertaining to the said tour as well as the terms and conditions of the tour booking. The complainants were issued a letter detailing all the costs which were accepted by the complainants and has signed the same.  As per booking terms and conditions each tour participant should hold a valid passport and onus of obtaining a valid passport lies wit the tour participants. The O.P as a tour operator merely provides assistance in the visa application process. The complainants have filed this complaint only to extract money from the O.P and same is an afterthought. So, the O.Ps have prayed for dismissal of the case.

            Both parties have filed Brief Notes of Arguments. Ld. advocate appearing for O.P nos. 1 and 3 in support of their argument mainly on the ground that this District Commission has no territorial jurisdiction to try and entertain the present complaint as the parties by contract conferred exclusive jurisdiction upon the Courts at Mumbai, has cited the following decisions:

1. 1(2006) CPJ 346
2. AIR 1996 SC 2508
3. AIR 1989 SC 1239 and
4. Appeal (Civil) Case no. 4965 of 2020 of SC.

Following points require determination :-

1. Whether the present complaint is maintainable in law?
2. Whether there has been deficiency in service on the part of the O.Ps?
3. Whether the complainant is entitled to the reliefs as prayed ?

Decision with reasons

Point no.1:-

            It has been contended by the O.Ps that this Commission lacks the territorial jurisdiction to try the case and only courts in Mumbai has the jurisdiction to try it. It is submitted that since the parties in this case by contract have conferred exclusive jurisdiction upon the courts in Mumbai excluding the jurisdiction of other coau5ts also having jurisdiction over the subject matter, the complaint filed before this Commission is not maintainable. But on a careful scrutiny of the record it appears that the very basis for taking such plea about lack of territorial jurisdiction has not been filed by the opposite parties. They have not filed the alleged contract before this Commission . On a thorough perusal of the record it appears that a total illegible paper/document is annexed with the written version filed by O.P nos. 1 & 3  but it is so illegible (totally black) that even the nature of the document is not readable. So, when the very document or the alleged contract is not forthcoming before this Commission then the contention of O.Ps that this Commission lacks the territorial jurisdiction is devoid of any merits. Consequent to the same the case laws referred to above cited by the Ld. Advocate for the O.P nos. 1 & 3 will have no application and thus no point to discuss those case laws.

            It will not be out of place to mention here that to a specific question by the O.P nos. 1 & 3 in the questionnaire filed by them being question no.11 that “as per terms and conditions of the booking, any dispute relating to the subject tour shall be tried by Mumbai Courts/Tribunal only “complainants in their reply have specifically denied of having any such contract and have specifically stated that the O.Ps’ registered office is in Mumbai but carried business in Kolkata. It is further stated by the complainants in their reply that all the documents were executed at Alipore office and the transaction was made at Alipore office which is within the territorial jurisdiction of this Commission.

            Thus this point is answered against the O.Ps.

Point nos. 2 and 3:-

            On perusal of the documents filed by the complainants it is evident that the complainants booked the 18 days tour for Scandinavian and East Europe scheduled to commence on 24.05.2016 and out of total tour price of Rs.5,75,000/- sum of Rs. 1,00,000/- was paid by the complainants to O.P no.2 as an advance on 10.11.2015 and subsequently further sum of Rs.1,00,000/- was paid on 19.01.2016. These facts have also not denied by the O.Ps. The main dispute in this case is that according to complainants due to negligence and  delay in taking step by the O.P no.2 who was admittedly an employee of the O.P company at the relevant time in obtaining the Scandinavian Visa in time, they had to pay extra amount of Rs.30,000/- for diversification of tour. They also had to pay Rs.9600/- as their flight ticket from Budapest to Berlin was booked without luggage and their hotel at Berlin was booked for away from Airport. O.Ps’ contention is that booking terms and conditions clearly stated that each tour participant should hold a valid passport and onus of obtaining a valid passport lies with the tour participants and O.P as a tour operator merely provides assistance in the Visa application process. It is further contention of the O.P company that O.P no.2 informed the complainant about the extra stay and location due to their passport problem and as the complainants agreed, O.P no.2 collected the money.

            It may be pertinent to point out that the complainants have filed the documents about the  “18 days All of Scandinavia with Eastern Tour Europe” wherein it is categorically stated that the tour participant must be in possession of a valid single Entry schengenstatin Visa.  The cost of the visa is included in the tour price. It is mandatory to do this visa through KUONI-SOTC . Admittedly complainants paid advance of Rs.1,00,000/- on 10.11.2015 and further Rs. 1,00,000/- on 19.01.2016. The tour was to commence on 24.5.2016. So to obtain visa, steps had to be taken by the O.Ps. But complainants have claimed that O.P no.2 contacted the complainants only in middle of April 2016. Till April second week, O.P no.2 did nothing. According to complainants, as per advise of O.P no.2 they handed over their respective bank accounts on 16.03.2016 and inspite of handing over necessary papers/documents as required by him for obtaining a valid  single entry schengenstin visa, O.P no.2 did not take any step for obtaining the same. It is only on 15.04.2016 O.P no.2 informed the complainants that the passport of complainant Sandip basu was invalid due to observation therein. The observation or reason of Passport being invalid has not been stated by either of the parties but it is admitted fact that the complainants obtained passport on payment of Tatkal fee.

            Complainants intend to suggest that if O.P no.2 had taken the step earlier than the passport being invalid could have been known earlier and there would not have been diversification of tour and he would not have to pay the extra amount of Rs.30,000/- towards diversification cost. The claim of the complainants that they have gone on tour with the O.P on earlier occasion with the same passport has not been denied and disputed. So, it is but natural that complainants would have no knowledge about there being anything wrong with his passport.  It is true that as per terms or guidelines stated in the document relating to tour or itinerary, in case of deviation from actual tour date Rs.10,000/- plus air fare difference were to be paid by the tour participants. But the question is deviation in the itinerary accrued due to the fault on the part of the complainants or because of the O.Ps? O.Ps have not stated anywhere, actually when they took relevant step for obtaining visa inspite of complainants ‘specific claim that there was delay on the part of the O.P no.2 in taking such step. Complainants had to go ahead with the tour by paying tatkal fee because if the tour was cancelled by them, cancellation charges would have taken and the amount paid could be forfeited by the O.Ps.

            It appears that the diversification happened because of non-availability of Norway Visa. Complainants were informed by O.P no.2 only on 24.4.2016 that Norway visa was not available prior to 13.05.2016, due to which they were compelled to take Germany visa by paying extra amount of Rs.30,000/- towards diversification of return date of tour for two days. Admittedly it was a group tour and other tour participants’ Visas were obtained but due to delay in knowing about the passport of one of the complainants being invalid, complainants had to stay in Berlin , Germany for two days. If the O.P no.2 had taken the step immediately after he was handed over necessary documents by the complainants, the passport could have obtained  immediately even on Tatkal basis on knowing the reason of passport being invalid and there would have not been problem in obtaining the Norway visa resulting thereby no diversification. So, since there was delay in taking necessary steps by the O.P no.2 , an employee of the O.P no.1, inspite of complainants making payments and handing over necessary documents, we find that the extra amount of Rs.30,000/- had to be paid by eh complainants towards diversification of return tour date, due to negligence on the part of the O.Ps and thus complainants are entitled to refund of the same. Complainants are also entitled to Rs.4800/- towards luggage cost paid by them at Budapest Airport as in the electronic ticket for journey dated 11.6.2016 from Budapest to Berlin, in relevant column against the baggage O.P is mentioned. So, the said ticket clearly indicates that fare did not include free  baggage transport. However, as there are no documents before this Commission about location of other hotels nearby the Berlin Airport, we find no justification to allow other reliefs claimed by them.

            O.P no.2 has mainly contended that he had joined the O.P company on 02.02.2015 but he left the said company on 01.06.2016, so he cannot be held responsible. But it is already discussed that it was O.P no.2 due to whom the delay was caused, so he cannot shy away  from his responsibility only because he left the company subsequently.

  Hence,

                  ORDERED

that  CC/49/2018 is allowed on contest. O.Ps are jointly and severally directed to pay total sum of Rs.34,800/- to the complainants within 60 ( sixty )  days from this date, failing which the sum shall carry interest @9% till realisation.

O.P Company is further directed to pay litigation cost of Rs.10000/- within the aforesaid period of 60 ( sixty )  days.