PER S.K. NAIK, MEMBER

          Respondent/complainant along with his wife went to Australia for site seeing on 9.3.2001.  He had booked his itinerary through the petitioner/opposite party – Holiday Representation.  While in Australia from 11.3.2001 to 24.3.2001, he encountered two unpleasant and inconvenient episodes ; first with regard to the booking of his accommodation in Batman’s Hill Hotel at Melbourne, alleging that the voucher for the booking of accommodation in Batman’s Hill Hotel at Melbourne issued by M/s ATS Pacific Sydney wrongly stated the booking of a double bedroom accommodation for three persons, where as he had booked it only for himself and his wife ; thus creating confusion which took about two hours to resolve, which delayed his checking in by two hours as a result of which, he lost an opportunity to visit the Victoria market.  In the second incident, the transport facility from Cairns Airport at Brisbane to the Hotel as promised was not made available for which he had to telephone the Palm Royale  Hotel where he was to stay, who later sent the vehicle  but even that vehicle had to wait for some more time to pick up passengers coming by another flight.  In the process, the complainant was delayed by about half an hour, loosing valuable time for site seeing and marketing as no hotel bus, for site seeing was available after 7.00 p.m.

          The complainant had also alleged that the petitioner/opposite party had charged much more amount than was offered by another travel agent and all these amounted to gross deficiency in service.

          When no response was received from petitioner/opposite party to the notice issued by him, a complaint was filed before the District Forum.  The District Forum vide its order dated 7.9.2002 held the petitioner/ opposite party to be deficient in service and made them liable for compensation which was quantified at Rs.50,000/- and further imposed a litigation cost of Rs.10,000/-.

          The matter was taken up in appeal by the petitioner/opposite party before the State Commission, who vide the impugned order has modified the order of the District Forum only to the extent that the cost of Rs.10,000/- was not required to be paid as a lump sum compensation of Rs.50,000/- would be adequate.  It is this order of the State Commission  that is under challenge in this revision petition before us. 

          Learned counsel for the  petitioner has contended that the Fora below have completely ignored the submissions of the petitioner/opposite party on the following grounds :-

(i)                That the petitioner/opposite party was only a booking and sale agent of M/s ATS Pacific, who with the brand name of “UTC Australia” organize tour packages in Australia and the petitioner/opposite party undertakes the booking of such tour packages for Indian Tourists to Australia on a commission basis.  The tourist, therefore, is a customer of M/s ATS Pacific and the petitioner is not responsible to provide any service connected with the tour in Australia.  Since, they do not act on behalf of any hotel or any other party in Australia, the Fora below have grossly erred in holding them responsible for the ‘so-called’ deficiency in service in the hotel and at the Airport while in Australia.  Any deficiency, if at all would be that of the principal and not that of the agent.

(ii)              The Fora below also failed to appreciate that the petitioner/opposite party only helps the intending tourist in making choices of hotels depending upon the location and tariff rates, selecting tour package vis-à-vis demands and places of tourist interest.  It only helps the customer to chalk out road map for holiday tour to Australia within their budget and choice.  Once their itinerary is finalized, the same is transmitted to M/s ATS Pacific to undertake the booking of hotel accommodation and other arrangements as per the demand.  The petitioner/opposite party on receipt of the confirmation with regard to the booking arrangements, etc. from M/s ATS Pacific informs the customer and hands over consolidated voucher for confirmation booking in hotel with express instructions that on arrival in Australia, the customer is to establish contact with the principal tour organizer i.e. M/s ATS Pacific at the appointed hotel in Australia.  In the case in hand, the respondent/complainant was to report to the representative of M/s ATS Pacific at   Furama Central Hotel at Sydney and obtain advice in exchange of individual hotels as given to him in India by the petitioner.  All this goes to show that the role of the petitioner/opposite party was that of a facilitator between the principal and the customer only, while in India and no responsibility can be fastened on him once the customer had reached Australia.

(iii)            Denying that there was any deficiency in service with regard to the so-called delay in providing the accommodation at Batman’s Hill Hotel, learned counsel has contended that the complainant was issued one double bedroom confirmed booking voucher as per booking from India.  He checked in at 1.20 p.m.  when check-in time commenced at 1.00 p.m.  But for his waiting for his friend and co-passenger Dr.Kaushik, he could have checked in a few minutes earlier.  Dr.Kaushik had failed to surrender the confirmed booking issued by the petitioner in India on arrival at Sydney and failed to collect fresh confirmed voucher for each individual hotel from the staff of M/s ATS Pacific.  This created the confusion as, inadvertently, the complainant’s voucher reflected three occupants in a double bedroom which was sorted out within 15-20 minutes. This could not be made the sole reason for delay with regard to not being able to visit the Victoria market which closes at 2.00 p.m.  The complainant has tried to make a big issue out of a non issue for ulterior motive.

(iv)            The allegation that no transport facility was provided at Cairns Airport and no one received him is again not based on facts.  The enquiry made subsequently revealed that a vehicle came to the Airport to receive the complainant. Despite holding a placard, bearing his name, the complainant could not be traced.  However, when a telephone call was received at the hotel, another vehicle was dispatched which brought the complainant couple within few minutes.  The complainant’s grouse that he was delayed because the transport waited to pick up other customers arriving by another flight did not tantamount to any deficiency in service specially when the complainant had failed to show up at the first trip of the vehicle.

(v)              Finally, learned counsel has contended that the fora below have failed to consider that the complainant while in Australia had failed to lodge any complaint with M/s ATS Pacific nor did they file any complaint with Hotel Batman’s Hill Hotel or Hotel Palm Royale.  The complaint having been filed in India after fully availing and enjoying the package tour is an afterthought with a view  to get benefit on false ground.  The counsel, therefore, submits that the order passed by the fora below needs to be set aside in the interest of justice.

     Learned counsel for the respondent/complainant, on the other hand, has justified the order passed by fora below.  He has contended that on arrival at Batman’s Hill Hotel at Melbourne, the complainant presented their booking voucher before the Receptionist.  It was then pointed out that the voucher was showing the booking of one double bedroom for three persons.  Since the Receptionist did not remove, the confusion and refused to obtain a clarification from the agent at Sydney ; there was a delay in checking into the hotel.  The delay is confirmed from the letter issued by Asst. Office Front Manager.  Denying that Dr.Kaushik was any relation of theirs, learned counsel contends that he was only a co-passenger who did not permit them to take the double bedroom until the confusion with regard to his reservation was resolved.  According to the counsel, they lost two hours in the process, as a result of which they could not make it to the Victoria market which closes at 2.00 p.m., thus their desire to fulfill one of the ambitions was frustrated.                                        In similar vein,  learned counsel contends that on arrival at Cairns Airport at Brisbane, they were supposed to be picked up for transfer to Hotel Palm Royale by hotel coach.  However, there was nobody to receive them and the Receptionist at the Airport was discourteous.  It was only after a telephone call to Hotel Palm Royale and waiting for sometime that a coach arrived but it did not straightaway go to the hotel and waited for some more guests who were arriving by another flight.  Finally, they reached the hotel at 6.30 p.m. although, they should have reached there at 5.35 p.m.  Allotment of the room took some time, resulting in loss of two hours as a result of which, they could not visit the main city as the last free service coach of the hotel departed at 7.00 p.m.  On both these grounds, therefore, the counsel submits that there has been clear cut deficiency in service.  When a tourist goes to a foreign country by spending huge amount of money, he is bound to be thoroughly disappointed and depressed if his desire to cover as many places as possible do not materialize for no fault of his.  Contending further, he submits that since the complainant had no privity of contract with the hotels abroad, he had no option but to file his complaint on his return to India.  Both the Fora below have clearly held the petitioner/opposite party deficient in service and, therefore, in exercise of its revisional jurisdiction, this commission should not interfere in their order.  He, therefore submits that the petition be dismissed with cost.

     We have heard the learned counsel for the parties and have also perused the records of the case.

      The respondent/complainant on his return to India from a package tour to Australia, was aggrieved on the inconvenience caused to him at Batman’s Hill Hotel at Melbourne and secondly, not being received at Cairns Airport at Brisbane.  The episode at  Batman’s Hill Hotel at Melbourne revolved around an entry in the voucher which indicated reservation of a double bedroom with three occupants.  While, the complainant alleged that the Receptionist at the hotel was not helpful in sorting out the confusion which caused delay, we notice from the records of the case that the confusion was removed within a period of 15-20 minutes.  Undisputedly, the complainant was issued one double bedroom confirmed booking voucher for Batman’s Hill Hotel by the petitioner/opposite party while going from India.  It is also not denied that Dr.Kaushik was a co-passenger with the complainant, who too had been issued a voucher for a single room.  It is also not denied that the tourist on arrival at the  point of first disembarkation at Sydney were required to present the hotel vouchers issued in India to representative of M/s ATS Pacific and obtain fresh voucher for each individual hotel.  Dr.Kaushik, the co-passenger of the complainant, however, defaulted in obtaining his voucher while the complainant obtained a voucher in exchange of the Indian voucher which, however, indicated occupancy for three persons due to a clerical error.  The complainant did not cross check this mistake by the representative of ATS Pacific at Sydney which came to light only when the complainant presented the voucher at Batman’s Hill Hotel at Melbourne.  To us, it does not seem to be such a blunder that it would have caused enormous amount of inconvenience or delay, for the simple reason that there was no need for the complainant to have waited for Dr.Kaushik to arrive and they could have told the Receptionist that being husband and wife and there being no third member of the family, they would occupy the double bedroom, which was originally also booked as such by the agent of M/s ATS Pacific while in India.  The contention that Dr.Kaushik who was a co-passenger insisted on being accommodated as the third occupant simply cannot be believed.  A report on the incident furnished by Batman’s Hill Hotel at page 35 of the paper books states as under :-

“This trio arrived at our Reception Desk with only one voucher for a double room and insisted it was valid for all three of them.  Our manager on duty, Mr.Steve Keen, carried out of search and eventually found the name of Dr.Kaushik booked by ATS.  The client himself did nothing to help nor did he have a voucher.

The final outcome was that they were checked into their rooms at 1.22 and 1.23 p.m. on March 15.”

          It is clear from this report that the complainant and their co-passenger were more to blame for the confusion which was sorted out within few minutes which could be termed as a deficiency worthy of being considered as a cause of complaint.  That the complainant could not visit the Victoria market because of this delay cannot be made a cause for the complaint as certain formalities in any case have to be completed with regard to the allotment of accommodation in a hotel under the rules.  Besides, there was no mention of any such visit in the itinerary. Thus, on this count, let alone the petitioner/opposite party but even the Batman’s Hill Hotel at Melbourne cannot be found to have been  deficient in service.  

          On the allegation of failure on part of Hotel Palm Royale Cairns, to provide for his transfer from the Airport to the Hotel, there is no reason for us to disbelieve that the hotel authorities had indeed sent a transport and their representative was present with a placard of the hotel bearing the name of the complainant but found no trace of the complainant.  The complainant, himself admits that after waiting for sometime, when he made a telephone call to the hotel, they promptly sent a vehicle.  The grounds of the complainant that the vehicle did not take him to the hotel straightaway but waited for some more passengers arriving by another flight which caused the delay has to be viewed in the context that such transfer services are extended only as a matter of courtesy and not as a matter of right which is being alleged by the complainant.  Even if it was so offered, the hotel can’t be faulted since the complainant had failed to show up during the first trip.  In a given situation, it is expected of a person availing such extended courtesy also to be sportive and not demanding.  The hotel authorities in their reply at page 36 of the paper book have clearly stated that “their Concierge Department did go to the Airport to meet the Bhatnagar party.  They looked for the guests at the Airport arrival lounge, however, they were unsuccessful.”  They further rendered their sincere apologies for the Bhatnagar’s dissatisfaction.  To us, even this incident does not amount to any deficiency warranting the filing of a complaint.  The problem appears to have been in the mind of the complainant rather than in reality, as a tourist in a foreign land would take such trifle matters in its stride and still treasure it in his memory as an experience.  Both the fora below, therefore have wrongly held these two incidents to be deficiency in service.

          We also agree with the learned counsel for the petitioner/opposite party that the petitioner being only an agent of ATS Pacific whose role was very limited cannot be made liable for any inconvenience or deficiency in service provided by the hotels abroad.  Reliance in this regard has been rightly placed by the learned counsel for the petitioner on the cases Midland Overseas Vs.CMBT Tana & Ors. AIR 1999 Bombay 401 and Sitaram Motilal Kalal Vs. Santanuprasad Jaishanker Bhatt, AIR 1966 SC 1967.  For all these reasons, we find that no case has been made out for deficiency in service and both the Fora below have totally erred in holding the petitioner liable.  Under the circumstances, orders passed by fora below being irregular are set aside and the revision petition is accepted, however, with no order as to cost.

                                                       …………………..………J

     (R.K. BATTA)

      (PRESIDING MEMBER)

                                                                   ……………….……………

                                                        (S.K. NAIK)

                                                                            MEMBER