BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    29^th DAY OF AUGUST 2019

Complainant/s: -                           

1. Sri.Shivasubramanya.B.S. S/o Late Sreekantaswamy, Aged about 62 years

R/at: No.E-1-19, 1^st Cross,

Arakere, Syndicate Bank Colony, Bannerghatta

Road, Bengaluru-76.

2. Sri.Narasimhan.V,

S/o Late N.Vardarajan,

Aged about 61 years,

R/at: No.1, East Link Road,

‘B’ Street, 4^th Cross, Malleswaram,

Bengaluru-03.

3. Smt.Lalitha Prasad

W/o M.R.Prasad,

Aged about 71 years,

R/at: No.44, 7^th Cross,

HMT Layout,

R.T.Nagar,

Bengaluru-32.

4. Smt.Leela Menon,

W/o Late K.M.Ravindranath,

Aged about 68 years,

R/at: No.672, 2^nd ‘B’ Main,

8^th Block, Koramangala, Bengaluru-05.

5. Smt.Mandaym Gomatam Jayashree,

W/o Late M.C.Raghunath, Aged about 69 years,

R/at: 70/3, Srinidhi

Apartments, Vanivilas

Road, Basavanagudi,

Bengaluru-04.

By Adv.Sri.Raghavan.M

V/s

Opposite party/s:-    

1. Sotc Travel Services Pvt. Ltd., ‘Malliks Embassy,’

No.9, Union Street

Off Infantry Road,

Bengaluru-01.

Rep. by Sri.R.Gabril

2. Sotc Travel Services Pvt. Ltd., No.265, Kausthubam,

1^st Floor, 17^th & 18^th Cross, Sampige Road,

Malleswaram,

Bengaluru-03.

By Adv.Sri.S.Ramakrishnan

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainants No.1 to 5 (hereinafter called as Complainants) have filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party No.1 & 2 (herein after called as OPs) to pay a sum of Rs.5 lakhs with interest at 18% p.a.; to pay Rs.5 lakhs towards cost and damages and to award such other reliefs.

2. The brief facts of the complaint are as under:

The Complainants submit that, with a view to make South Africa trip, they contacted the OPs. As per their suggestion, the Complainants choose the tour titled 13 days South African Experience – Super Value Tour 2017 (12 nights and 13 days) and booked the tickets for grand tour of South Africa from 05.12.17 to 18.12.17 which covered South Africa, Victoria Falls and Masai Mara. OPs agreed to make all arrangements i.e. travel, stay, food and visa’s charges at the contract price. OPs collected Rs.2,38,781/- per person. The Complainants complied with the required travel documents and vaccine for the travel. But on 19.01.18, OPs sent a letter along with cheque for Rs.1,13,160/- being the partial refund of tour charges paid. Others also received the same in different amounts. The Complainants further submit that, OPs caused mental tension during the travelling. OPs undertook the journey without hesitation, but to misfortune, all flights arranged up to Johannesburg were delayed and the last flight to Port Elizabeth was missed, British Airways flight took off in time. The Complainants were asked to stay in Johannesburg and then travel to George.  Hence, they were made to miss the first part of the tour i.e. visit to Port Elizabeth and drive on garden route, visited Bluukrans Bridge and Bungee Jump as per the tour programme. The OPs totally failed in arranging the tour with vast experience and also failed to take care of delay of flights, resulted in losing the first part of the tour. On 9^th forenoon, OPs announced that the visas are not arranged and they prepared to offer two days stay in Cape Town to compensate other destinations. The Complainants were keen to visit Victoria Falls and Masai Mara, but the OPs taken them for a ride by wrong assurance. Tour programmes were as per OP’s terms, made the entire programme a waste not only financially, physically and mentally which amounts to deficiency of service. Hence this complaint.

3. After issuance of notice, OP did appear and filed version denying the contents of the complaint stating that, this forum has no jurisdiction to try and entertain the said complaint as the parties have by contract conferred exclusive jurisdiction upon the courts at Mumbai. Ops further submit that, the Complainants had voluntarily opted to book the said tour scheduled to depart on 05.12.17. By signing the Booking Form along with the ‘Booking terms and conditions’,  the Complainants specifically agreed to all the terms and conditions and further to adhere to all the terms and conditions of the tour booking including those relating to visa and cancellations. The OPs categorically denied that, they had agreed to arrange for the visas of the Complainants. The OPs are mere tour marketers and not a visa issuing agent and hence at best can only act as a document courier between intending travelers and the respective Embassies. It is the responsibility of each traveler to obtain visa prior to his/her being permitted to travel abroad. It is mandatory that the total tour cost was to be paid at least 45 days prior to departure. But the Complainants No.1 & 2 and 3 to 5 made the payment of balance tour cost just 20 and 4 days prior to departure respectively.  However, as a goodwill gesture, the OPs went ahead and processed all the bookings and services for the tour. The refund of Rs.57,155/- per person was processed for the Zimbabwe part of the tour even though no amount was refundable to the Complainants in any manner whatsoever. The decision to grant or refuse a visa is the sole and absolute discretion of the respective consulate of a sovereign state and OPs are in no way responsible for refusal of the same. It was only due to the Complainants own inability to obtain the required visa that the Complainants were not able to visit Zimbabwe for which the OPs cannot be saddled with the burden of being somehow responsible for the same. The Complainants received the cheques under protest, thereby they would not have encashed the same. After having done so, the Complainants are now estopped from making such bold and baseless allegations. The said refund was processed as a goodwill gesture and living up to their reputation as a truly customer centric organization even though no amount of money was due and payable to the Complainants in any manner whatsoever. Hence on these grounds and other grounds OP prays for dismissal of the complaint.

4. To substantiate the case, Complainant no.1 filed affidavit evidence and produced the documents. OP.1 & 2 filed affidavit evidence and produced the documents.  Both not filed the written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the Complainants prove the deficiency of service on the part of OPs, if so, entitled for the relief sought for?

2. What order?

        6. Our answer to the above points are as under:

Point No.1:- In the negative

Point No.2:- As per final order

REASONS

7. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OPs.  The undisputed facts which reveal from the pleadings of the parties goes to show that, all the Complainants have taken the service from the OPs for their South Africa tour. In this context, they have paid the amount as stated in their complaint. Looking to the relief i.e. sought for is to “direct the OP.1 & 2 collectively to pay a sum of Rs.5 lakhs with interest at 18% p.a.; direct the OP.1 & 2 collectively to pay a sum of Rs.5 lakhs towards litigation expenses and other damages for intentionally withholding the compensation amount.” Both the OPs in their version specifically stated that, availment of the visa is not the duty of the OPs. Further, OPs have not paid the agreed tour amount within specified time. Anyhow, to maintain the goodwill, they received the amount at the later stage and made the proper arrangements. In this context, there is no any laxity much less the deficiency of service on their part. Further to substantiate their stand, OPs specifically stated that, all the Complainants are bound by the terms and conditions of the booking form/Annex.A. The relevant clause pertaining to visa as stated in booking terms and conditions reads thus:

“All Tour Participants should hold valid travel documents 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 event 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. All cost, charges in respect of the said visa application shall be borne by the tour participant. Visa fees are non-refundable under any circumstances whatsoever.

However due to rejection of visa or non-processing of visa application due to any circumstances if the tour participant is unable to travel on the tour originally booked he/she shall have the option to postpone the tour to another available date or change to any other tour by paying transfer charge.

The company would not be responsible in any way in case of any clerical error regarding name, attachment of wrong photograph, duration and type of visa (single/multiple entry) occurring on passport, refusal of an entry visa and delays in grant or refusal of an entry visa.”

8. Referring to the above clause, further submits that, the Complainants had paid an amount of Rs.30,000/- per person towards the non-refundable interest free booking amount and Rs.1,500/- as the Secure Your Booking Amount. The balance tour cost of Rs.2,38,781/- per person was also paid by the Complainants on 15.11.17 which is an admitted position of the Complainants. Further submits that, the relevant clause pertaining to invoice and balance payment as stated in the How To Book Your Holiday, reads thus:

“Your invoice will mention the due date for payment of the balance tour cost including the foreign exchange component of the tour. Your travel documents and airline tickets can be released only after receipt of full and final payment including the foreign exchange component of the tour cost. Delay in adhering to the final date advised to you for full payment would result in the cancellation of your seat on the tour and levy of cancellation charges. Hence the balance payment has to reach us as per the schedule mentioned in your invoice or at least 45 days prior to departure of your tour whichever is earlier.”

9. As we already stated above, the Complainant Nos.3 to 5 made the payment of Rs.2,68,926/- barely 4 days prior to departure. The Complainant Nos.1 & 2 made the payment of the balance tour cost of Rs.2,38,781/- on 15.11.17 barely 20 days prior to departure. These facts are admitted by the respective Complainants. Further submits that, the refund of Rs.57,155/- per person was processed for the Zimbabwe part of the tour even though no amount was refundable to the Complainants in any manner whatsoever. Further submits that, the decision to grant or refuse a visa is the sole and absolute discretion of the respective Embassy/Consulate of a sovereign state for which the OPs are in noway responsible for refusal of the same. Further submits that, the cheques are encashed by the Complainants and after having done so the Complainants are now estopped from making such bold and baseless allegations. Further submits that, if the Complainants received the cheques under protest, they would not have encashed the same. The said refund was processed towards partial refund of the tour and as a goodwill gesture and living up to their reputation as a true customer centric organization even though no amount of money was due and payable to the Complainants in any manner whatsoever. Further submits that, The OPs are mere tour operators and not a visa issuing agency or authority and hence at best can only act as a document courier between intending travelers and the respective embassies and the intending travelers have to adhere to all terms and conditions as laid down by the respective embassies and the tour participants are bound by their decision which is final. Further submits that, the Complainants have also failed to appreciate that the arrangements were done in a foreign land at a very short notice. The supplement charges of Rs.25,000/- per person for the return tickets of the Complainants back to India from Cape Town was borne by the OPs. Hence submits to dismiss the complaint as frivolous.

10. We find there is considerable force in the contention taken by the OPs. Further, we noticed that, the Complainants have not sought for refund of the part of the agreed tour amount, but their grievance is to award compensation of Rs.5 lakhs for the laxity as well as deficiency of service found on the OPs. In our considered view, this contention has no legs to stand for the simple reasons that, the Complainants ought to have bound by the terms and conditions of their tour. But it is evident that, they have not bound by terms and conditions as they have not paid the entire tour amount well within time. Further the availment of the visa is not the duty of the OP. Utmost, they can assist them if the amount was paid well within time. Further the amount so received by the Complainants under protest is not taken in to consideration for the simple reasons that, there is no any unfair trade practice or else deficiency of service found on the part of OPs. Hence, complaint filed by the complainants is lacking merits and liable to be dismissed.  Accordingly we answered point No.1 in the negative.

          11. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the complainants is dismissed devoid of any merits. Looking to the circumstances of the case we direct both parties to bear their own costs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 29^th day of August 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainants dated.21.08.18

Sri.Shivasubramany.B.S, Complainant no.1

Copies of Documents produced by the Complainants:

Witnesses examined on behalf of the OPs dated.21.12.18

Sri.Nadeem Haider, Sr.Manager and Authorized Signatory   

Copies of Documents produced by OPs

            MEMBER                                           PRESIDENT