For the Complainant                       -In person.

For the OP                            - Ms  Punam Chowdhury, Advocate

FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

This is an application u/s.12 of the C.P. Act, 1986.

The fact of the case in brief is that the Complainants desired to avail package tour to Europe through SOTC Travels for which they came in contact with Mr. Hyder Ali, Branch-in-Charge of the OP of Bakultala Branch, Kasba. Mr. Ali visited the residence of the complainants and after the meeting he sent a mail to the complainant on 19.02.2018 mentioning the total package cost for per person is Rs.1,45,000.00 with other terms and conditions. As per Mr. Ali’s instruction the complainants handed over the first cheque of Rs.1,00,000.00 to the OP’s person Mr. Subrata Mondal on 23.02.2018. The total cost for visiting Europe through OP was Rs.5,80,187.00 for 4 persons. Mr. Subrata Mondal collected all necessary documents from their residence at 24 Mandeville Garden, Kolkata-700019 on 23.03.2018 along with another Cheque of Rs.60,000.00 from the complainant No. 1. On 10th May, 2018 Mr. Subrata Mandal informed the complainant No.1 over phone to go for biometry at VFS Kolkata, Visa Application Centre, 5^th Floor, Rene Tower, 1842, Rajdanga Main Road, Kolkata-700107. The complainant No. 1 was also advised to deposit Rs.2,81,926.00 in the office of the OP before going to the Rene Tower. Accordingly, the said amount was deposited to the office of the OP on 10.05.2018. The complainants were also asked to pay the visa charges of Rs.24,960.00 separately in cash which was assured to be adjusted from the final payment. The total payment of Rs.4,66,886.00 was made to the OP by 10.05.2018.. On 17^th May 2018, Mr. Subrata Mondal asked the complainant No. 1 to collect passport and visa for 4 persons from visa counter individually. When they had been there at visa counter they got individual letter mentioning the cancellation of visa which were found inside the Passport. The visas were cancelled by the Italian Consulate in Kolkata for the reason mentioned as “the information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable”. As per submission, the information was submitted by the OP and not by the complainants. They submitted all the relevant documents to the OP well in advance. OP was given the responsibility to process the visa on their behalf and OP submitted the papers to the Consulate very late. This was the reason for cancellation of Visa on 17.05.2018, 6 days prior to the petitioners’ journey i.e. 23.05.2018. Had the papers been submitted to the Consulate by the OP well in time,  incident of cancellation of visa might have been avoided. So it was a gross negligence on the part of the OP for submitting the papers so late to the Italian Consulate. After cancellation of visa the complainants requested Mr. Hyder Ali to make an alternative tour arrangement for them utilizing their full amount. But he did not comply with their request. Thereafter, the complainants requested the OP to refund Rs.4,66,886.00 vide their mail dated 21.05.2018 which was turned down by the OP vide their mail dated 23.05.2018 mentioning that the tour was cancelled by the complainants and also informed that since cancellation was made 6 days prior to departure, Rs.85,000.00 per person + GST will be deducted. But as a good gesture they will deduct Rs.50,000.00 per person + GST and the rest amount will be refunded. The complainants were not interested to get partial refund instead of the full amount since the cancellation of visa was not due to their fault. The complainants thereafter sent 2^nd mail dated 05.06.2018 and 3^rd mail dated 21.06.2018 for refunding the entire money. On 22.06.2018 the OP sent a reply stating their inability to refund the entire amount. Thereafter, another mail was sent to OP dated 29.06.2018 which was not however responded. Finding no other alternative the complainants approached the Consumer Affairs Department, Grievance Redressal Cell, Government of West Bengal, 11A Mirza Ghalib Street, Kolkata-700087 on 19.07.2018 for mediation. During the course of the mediation on 19.09.2018, OP refunded Rs.2,31,900.00 directly by transferring to the account of the complainant. The Assistant Director of Grievance Redressal Cell, Consumer Affair Department, Government of West Bengal requested  the OP to refund the balance amount of Rs.2,34,986.00 vide his letter dated 29.10.2018 but the OP remain silent and the complainants were advised by the said department to file statutory complaint before the appropriate Forum for redressal of the grievance. The said amount of Rs.2,31,900.00 credited directly to the account of the complainant was not supported by any document signed and agreed by the complainants prior to making such payment. The complainants have not signed any agreement paper with the OP in the matter of refund and deduction of Rs.2,34,986.00 is unjustified and one sided.

Under the above circumstances, the complainants prays for refund of Rs.2,34,986.00 being the balance cost of tour with 1,00,000.00 as compensation and Rs.10,00,000.00 as litigation cost.

The OP has contested the case by filing written version contending inter-alia that the complaint petition is not maintainable either in law or in facts and this Forum has no jurisdiction to entertain the complaint petition.  As per OP, one group tour viz; European Splendor was booked for 4 persons for a consideration of Rs.4,66,886.00 which was scheduled for departure on 23.05.2018. By a mail dated 20.03.2018, all the terms and conditions including cancellation charges were duly informed to the complainant and on being satisfied with the tour package details, they made the first payment of Rs.1,00,000.00 through cheque dated 23.02.2018. As per the terms and conditions, the entire cost of tour was to be paid 45 days prior to the date of departure. Admittedly, the complainant paid Rs.2,81,926.00 vide cheque dated 10.05.2018 i.e. nearly 13 days prior to the date of departure. Along with other submission the OP has stated that the visa of the complainant and his family members were rejected by the Embassy on 15.05.2018 on the ground that the purpose and conditions of intended stay was not reliable. Granting or rejecting of visa is the sole discretion of the concerned Consulate and OP has nothing to say in it whatsoever. The job of the OP regarding visa was limited in providing assistance which was duly complied with and under no circumstances the OP  can be made responsible for rejection of visa of the complainant and her family members. The terms and conditions specifically provides for the same and also stated to the complainant vide mail dated 20.03.2018. On 17.05.2018 OP received a request from the complainant for refund of the entire tour cost deposited by her thereby cancelling the subject tour. The OP duly replied that in the event of cancellation of tour the amount deposited shall be forfeited as per terms and condition of the booking form. However, as a good gesture, the OP proposed to refund the balance amount after deducting a sum of Rs.50,000.00 per person + GST vide email dated 23.05.2018. It is submitted that for the proposed group tour the components like air ticket, hotel, ground transport and site seeing are pre-booked and prepaid by the OP which are not non-refundable even if the tour is cancelled, which is evident in the terms and conditions of the booking form. However, as a good gesture, the OP has refunded a sum of Rs.2,31,900.00  to the complainant on 19.09.2018 which has been accepted by the complainant without any protest or demur. As such there is no deficiency on the part of the OP in the said matter.

On the pleading of the parties the following points have necessarily come up for determination.

1. Whether the Forum has got the territorial jurisdiction to entertain the complaint petition.
2. Whether there is any negligence and deficiency of service on the part of the  OP.
3. Whether the OP has adopted any unfair trade practice.
4. Whether the Complainant is entitled for the relief as prayed for.

Decision with Reasons

Point Nos. 1 to 4 :-

All the points are taken up together for the sake of convenience and brevity in discussion.

Both parties have tendered their Evidence on Affidavit, Reply  to the questionnaire set forth by their adversaries. The complainants have submitted their BNA while the OP has not submitted the same. We have travelled over all those documents placed on record.

Facts remain that  the above mentioned Complainants had booked for the group tour viz.  “European Splendor “  with the OP on 23.02.2018 by paying Rs.1,00,000/- through cheque  drawn on Bandhan Bank dated 23.02.2018 for   the date of  journey fixed  on 23.05.2018.  The complainants paid a  total sum of Rs.4,66,886/- during the period from 23.02.2018 to 10.5.2018 as per demand of the OPs including the Visa Charge of Rs.24,960/- which was told to be adjusted at the time of Final Payment. On 10.5.2018 the complainants were advised to attend the concerned  Embassy for biometric and etc. in connection with their Visa and the Biometric was done on the same day. But on 17.5.2018 the complainants came to know  from the office of the  Embassy that their Visas were cancelled by the respective Italian Embassy for the reason “ The information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable” .  This is a shocking news to the complainants when they were very much prepared mentally for enjoying the trip The complainant got the message over phone from one Mr. Subrata Mandal, a representative of the  OP on 10.05.2018 to go for Biometric at VFS Kolkata , Visa Application Centre, 5^th Floor, Rene Tower, 1842 Rajdanga Main Road, Kolkata – 700107. Before going to the said address they were asked to visit the office of the OP. with a payment of Rs.2,81,926/- . The above statement was not denied by the OP. in their W/V or in their Evidence on affidavit or in any other documents. So 10.5.2018 is the accepted date of complete communication in the matter of processing of Visa. Regarding balance payment for the cost of tour as alleged by the OP there is no evidence of default payments. The complainants had paid the installments as per the advice of the OP.

Now let us consider the issue of processing of Visa. Papers were accepted by the OP on 20.03.2018 and the complainants were called to be present with the pending documents at the Visa processing office on 26.04.2018 vide their e-mail dated 25.04.2018. Simply sending a mail dated 25.04.2018 about the Biometric on 26.04.2018 from the mail of Subrata Mandal, a representative of the OP to the e- mail address of Sharmita Bhattacharyya, the married daughter of Smt. Jaba Bhattacharya who happens to be a mere member of the group without informing Smt. Jaba Bhattacharya, the key person of the tour does not relieve the OP from rendering effective guidance as well as assistance to the complainants in the matter of processing of Visas. The said information was neither sent to the e- mail address of Smt. Jaba Bhattacharya nor Smt. Jaba Bhattacharya was otherwise informed about the said information that their Biometric has been scheduled on 26.4.2018. This casual approach of the OP tantamount to deficiency in service specially when they are very much well aware of the probable complications which may arise in the worst circumstances in the matter of granting of Visa. Since Visa is the main deciding factor for the ongoing foreign tour the Tour Agency should take care of the issue in a more serious manner so that enough time is left in hand to fulfill the requirements, if any, as asked by the Embassy. More over we do not find any evidence on the part of the OP pointing out their dissatisfaction for the inaction of the complainants in the matter of active participation for issuance of visa. The OP is quite silent over the issue for the reason best known to them.

However, the complainants were informed about the Biometric on 10.5.2018 over phone and the biometric was done on 10.05.2018 and thereafter the Embassy cancelled the Visas on 17.05.2018 for the reason beyond the knowledge and control of the complainants when  the date of journey was 23.05.2018.

From the above, it appears that for processing the Visa, the time left was only 12 days. Though the OPs have tried to escape from the liability of arranging the Visa by citing the terms & conditions of the tour where they have projected themselves as a mere mediator. Granting or rejecting of Visa by the Embassy is none of their business while they are accepting the important responsibility of getting it done by them at the initial stage of booking the tour. So they cannot avoid the responsibility of arranging Visas for the complainants by citing the terms and conditions which are absolutely one sided.

The OPs have reiterated in written version as well as in evidence on affidavit that the complainants have cancelled the said tour on 17.05.2018 i.e.6 days before the date of departure. Accordingly, as per their Cancellation Policy  they are entitled to deduct Rs.85,000/- + GST 5% from their paid amount. Oral cancellation as per their terms and condition is not allowed. Obviously, the cancellation request must be in writing as observed from their cancellation policy.. But they have failed miserably to produce any single documents wherefrom it could be established that the complainants were voluntarily willing to cancel their proposed tour of Europe splendor on 17.05.2018. The OP is harping everywhere the same self made story of cancellation of tour by the complainants. The complainants have sent their mail to the OPs. for refund of the entire money of Rs.4,66,886/- vide their E-mail dated 21.05.2018 when they have no other way but to ask for the money which they had deposited to the OP for the ensuing tour. The request was made only when they had lost the hope of the said tour because of cancellation of visa by the respective Embassy. So twisting the truth in their favour definitely tantamount to unfair trade practice on the part of the OP.

Moreover the reason for cancellation of visa as mentioned above does not clearly indicate the lapses of the complainant rather it could be inferred that the information were provided by the tour operator in the matter of stay at different places and at different hotels as per their itinerary where the complainants have no role to play with. So, lapses on the part of the tour operator in providing befitting information to the Embassy cannot be ruled out.

While travelling over the documents submitted by the complainants and the OP it is observed that the OP had sent the first information to be present in the Visa Centre on 26.04.2018 to Sharmita Bhattacharyya, one of the complainants vide E-mail dated 25.04.2018 at 14-46. The OP had communicated with Sharmita Bhattacharyya in earlier occasions also in respect of the ensuing tour vide E-mail dated 14.02.2018 at 02-24 p.m. and E-mail dated 19.02.2018 at 12-25 p.m. which were accordingly  forwarded to her mother immediately. So the plea of not having computer in the custody of Sharmita Bhattacharyya for opening the mail dated 25.04.2018 is not at all acceptable. Had they met the Embassy on 26.04.2018 they could get some more time to satisfy the Embassy about the shortcomings in the matter of processing of Visa. So there has been lapses on the part of Sharmita Bhattacharyya who had overlooked the important mail sent by the OP. For this sort of lapses, the complainants are not entitled for the refund of the full balance amount. Accordingly a penalty to the tune of Rs.50,000/- is to be imposed upon the complainants on non standard basis. Since the balance amount deducted by the OP was Rs.2,34,986/- and the penalty imposed upon the complainants is Rs.50,000/- the actual amount to be refunded by the OP is Rs.1,84,986/- being the difference of Rs.2,34,986 and Rs.50,000/-.

Now, the question regarding territorial jurisdiction of the Consumer Forum, it is worthwhile to mention the First Appeal No. 425 of 2010 in the NCDRC, New Delhi where it is clearly stated that it would defeat the very purpose and object of the Consumer Protection Act, 1986, if the provisions of an agreement between a consumer and a service provider alone were to determine the jurisdiction of the Consumer forum. The submission of the OP in this respect as such does not help.

All the points under determinations are disposed of.

In the result the complaint succeeds in part.

Hence,

                                   ORDERED

                       The complaint case be and the same is allowed on contest in part against

the OP with the following direction :-

1)         OP is directed to refund a sum of  Rs.1,84,986/-  to the complainants on non standard basis.

2)         OP is also directed to pay a sum of Rs.5,000/- to the complainants as  compensation along with a litigation cost of Rs.5,000/-.

The above order is to be complied with within a period of 45 days from the date of this order otherwise the complainants are at liberty to put the order in execution.