BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.389 of 2015
Date of Instt. 07.09.2015
Date of Decision :27.07.2016
Kirpal Singh Bhalla, aged about 50 years son of Raghbir Singh R/o 126-R, Model Town, Jalandhar City-144003.
..........Complainant
Versus
1.The Branch Head, Cox & Kings Ltd, 1-A, 1st Floor, Seyu Complex, near Model Town Gurudwara, Jalandhar, Punjab-144003.
2.Cox & Kings India Ltd., Turner Morrison Building, 16 Bank Street, Fort, Mumbai-400001 through its Chairman-cum-Managing Director.
.........Opposite parties
Complaint Under Section 12 of the Consumer Protection Act.
Before: S. Bhupinder Singh (President)
Sh.Parminder Sharma (Member)
Present: Sh.IS Bhatia Adv., counsel for the complainant.
Sh.Gagandeep Mehta Adv., counsel for the OPs.
Order
Bhupinder Singh (President)
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties (hereinafter called as OPs), on the averments that complainant was granted incentive Trip to UK by M/s Sony India Pvt Ltd and had approached the OP No.1 branch for a UK holiday package and as quoted by OP No.1, the complainant deposited a sum of Rs.1,56,914/- towards the cost of package through NEFT vide cheque No.000178 in the account No.173010200001199 of Axis Bank Ltd., on 7.2.2015 vide Transaction No.3815004312770. The deposit was refundable if the Visa was refused. The complainant had applied for grant of Tourist Visa to British High Commission, New Delhi but his request for grant of Visa was declined and the complainant could not avail the package booked with the OP. Complainant submitted that the OPs were liable to refund the amount of Rs.1,56,914/- deposited by him towards the cost of package forthwith as the complainant has not availed the services of the OPs due to denial of Visa by British Embassy. The complainant served legal notice dated 11.5.2015 upon the OPs but OPs refused to refund the amount deposited by complainant with the OPs. The OPs No.2 has wrongly and illegally invoked the terms and conditions of some alleged agreement with Sony India Pvt Ltd to which the complainant was never a party nor the terms and conditions of the said agreement were brought to the notice of the complainant when he remitted the disputed amount. Moreover, the amount in question has been deposited by the complainant and not by Sony India Pvt Ltd., the complainant was to visit London for 3 nights/4 days from 10th March to 13th March, 2015 subject to grant of the Visa. It is the matter of common knowledge that the complainant could not travel abroad without the grant of Visa and the OPs can not forfeit the entire amount deposited by the complainant and were not justified in offering refund of Rs.15,000/- only out of the said amount. The OPs have no justification to forfeit the amount deposited by the complainant. There is clear cut deficiency of service on the part of the OPs. On such averments, the complainant has prayed for directing the OPs to refund a sum of Rs.1,56,914/- alongwith interest @ 12 % per annum. He has also claimed compensation and litigation expenses.
2. Upon notice, OPs appeared through counsel and filed written reply pleading that tour of complainant was booked on Management Conclave (a trip to London for 3 nights/4 days from 10th to 13th March, 2015), organized by Sony India Pvt Ltd., for their channel partners and company officials regarding which the OP has duly signed/entered into a contract with M/s Sony India Pvt Ltd. The booking of complainant was received by OP No.2 via M/s Sony India Pvt Ltd. So, all the terms and conditions of aforementioned contract are also binding upon and applicable to the complainant's booking and there is clause in this contract regarding cancellation of policy that there shall be 100% cancellation if any passenger tour was cancelled due to Visa rejection. M/s Sony India Pvt Ltd., approached OP No.2 to avail its services for commercial purpose. The amount was paid from the account of commercial firm on behalf of M/s Sony India Pvt Ltd. As such, complainant is not a consumer under the Consumer Protection Act. Complainant is not entitled to any refund of compensation.
3. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C6 and closed his evidence.
4. On the other hand, learned counsel for opposite parties has tendered into evidence affidavit Ex.OPW1 alongwith copies of documents Ex.OPW1/A to Ex.OPW1/G and closed evidence.
5. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.
6. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant was granted incentive Trip to UK by M/s Sony India Pvt Ltd. Complainant submitted that he deposited a sum of Rs.1,56,914/- towards the cost of package through NEFT vide cheque No.000178 in the account of Axis Bank Ltd., on 7.2.2015 vide transaction No.3815004312770 Ex.C5. Complainant submitted that the deposit was refundable if the Visa was refused. The complainant had applied for grant of Tourist Visa to British High Commission, New Delhi but his request for grant of Visa was declined and the complainant could not avail the package booked with the OP. The complainant approached the OP to refund the amount of Rs.1,56,914/- deposited by the complainant with the OP but the OP did not refund that amount. Complainant also served legal notice dated 11.5.2015 Ex.C2 through registered post, postal receipt of which are Ex.C3 and Ex.C4. The OP furnished reply Ex.C6 dated 11.6.2015 in which they submitted that OP has no privity of contract with the complainant. OP has entered into a signed contract with M/s Sony India Pvt Ltd., Ex.OPW1/B. The amount of Rs.1,56,914/- was deposited by Ms/ Sony India Pvt Ltd., through deposit slip Ex.OPW1/C and not by the complainant. OP, therefore, did not refund the aforesaid amount to the complainant. Rather they offered to pay a sum of Rs.15,000/- only through this reply Ex.C6. Learned counsel for the complainant submitted that all this amounts to deficiency of service on the part of the OPs.
7. Whereas the case of the OPs is that tour of complainant was booked on Management Conclave (a trip to London for 3 nights/4 days from 10th to 13th March, 2015), organized by Sony India Pvt Ltd., for their channel partners and company officials regarding which the OP has duly signed/entered into a contract with M/s Sony India Pvt Ltd Ex.OPW1/B. The booking of complainant was received by OP No.2 via M/s Sony India Pvt Ltd. So, all the terms and conditions of aforementioned contract are also binding upon and applicable to the complainant's booking and there is clause in this contract regarding cancellation of policy that there shall be 100% cancellation if any passenger tour was cancelled due to Visa rejection. M/s Sony India Pvt Ltd., approached OP No.2 to avail its services for commercial purpose. The amount was paid from the account of commercial firm on behalf of M/s Sony India Pvt Ltd. As such, complainant is not a consumer under the Consumer Protection Act. OP No.2 even assisted the complainant in his Visa application form. OP No.2 also booked air tickets and made other arrangements for the schedule tour of the complainant. The request of the complainant for Visa was declined by the British High Commission, New Delhi. There is clause in the contract between the OP and M/s Sony India Pvt Ltd., that 100% cancellation charges are applicable in case of Visa rejection of any passenger. The request of the complainant for Visa was declined, therefore, the OP has rightly applied 100% cancellation charges. Therefore, the complainant is not entitled to any refund of compensation. Learned counsel for the OPs submitted that there is no deficiency of service on the part of the OPs qua the complainant.
8. From the entire above discussion, we have come to the conclusion that complainant being the proprietor of M/s Bhalla Electronics and Traders, BMC Chowk, Jalandhar, was granted incentive trip to UK by M/s Sony India Pvt Ltd. In this regard M/s Sony India Pvt Ltd., entered into an agreement Ex.OPW1/B with OP for organizing/arranging the trip for their channel partners and company officials. The OP organized the tour of complainant and other persons and booked the tour of complainant on Management Conclave i.e. a trip to London for 3 nights/4 days from 10th to 13th March, 2015. Consequently, complainant deposited a sum of Rs.1,56,914/- with the OP towards the cost of package through NEFT vide cheque No.000178 in the account of OP at Axis Bank Limited on 7.2.2015 vide transaction No.3815004312770 Ex.C5. Complainant applied for grant of tourist visa to British High Commission, New Delhi but his request for grant of Visa was declined and as such complainant could not avail the package booked with the OP. Complainant approached the OP for refund of the amount of Rs.1,56,914/- deposited by complainant with the OP but the OP did not refund that amount to the complainant despite service of legal notice dated 11.5.2015 Ex.C2 through registered post, upon the OPs. The OPs submitted that they have no privity of contract with the complainant. The OP has entered into contract with M/s Sony India Pvt Ltd., Ex.OPW1/B and as per clause in the contract, 100% cancellation charges are applicable in case of Visa rejection of any passenger. The OP has further submitted that the amount was deposited by M/s Sony India Pvt Ltd. Here, we do not agree with this contention of the OP because the amount of Rs.1,56,914/- was deposited by the complainant with the OP and in this regard the complainant has produced on record transaction slip Ex.C5 vide which the complainant deposited this amount towards the cost of package through NEFT vide cheque No.000178 in the account of the OP at Axis Bank Limited on 7.2.2015 vide transaction No.3815004312770 Ex.C5. Not only this, the complainant has also produced on record the certificate from HDFC Bank Limited, Model Town Market, Jalandhar as well as statement of account of the firm of the complainant i.e. M/s Bhalla Electronic and Traders, Civil Line, Jalandhar which fully prove that this amount was deposited by the complainant and is debited to his account in favour of Cox & Kings India Limited i.e. OPs under reference No.UTIB0000173 vide cheque No.000178 and this amount was debited to the account of the complainant's aforesaid firm and was credited to the account of Cox & Kings India Limited i.e. OP.
9. The second plea of the OP is that as per clause of the agreement entered into between the OP and M/s Sony India Pvt Ltd Ex.OPW1/B, the OP is entitled to 100% cancellation charges in case of Visa rejection and in this case the Visa of the complainant was rejected by the British High Commission, New Delhi. The said agreement between the OPs and M/s Sony India Pvt Ltd., is binding between the OP and M/s Sony India Pvt Ltd., and not upon the complainant. The terms and conditions of that agreement could be made applicable upon the funds, if any, deposited by M/s Sony India Pvt Limited., and not upon the funds or amounts deposited by the complainant with the OP regarding the aforesaid tour. In case the Tourist Visa of the complainant was declined by British High Commission, New Delhi regarding trip of UK, the OP is not entitled to retain the amount deposited by the complainant regarding that tour that is why the OP has offered a sum of rs.15000/- only to the complainant in lieu of Rs.1,56,914/- as is evident from the reply Ex.C6 submitted by the OP to the legal notice sent by the complainant. The complainant has not availed any services of the OP nor the OP has provided any service to the complainant regarding the aforesaid trip to UK. As the Tourist Visa of the complainant has been declined by the British High Commission, New Delhi, so the complainant could not avail the aforesaid package i.e. tour to UK. So, the OPs are liable to refund this amount Rs.1,56,914/- deposited by complainant with the OP but the OP did not refund this amount to the complainant despite service of legal notice Ex.C2. So, OPs are certainly in deficiency of service to the complainant.
10. Consequently, we partly allow this complaint with cost and the OPs are directed to pay aforesaid amount Rs.1,56,914/- to the complainant with interest @Rs.9/- % per annum from the date of filing of the complaint till the payment is made to the complainant. OPs are also directed to pay the cost of litigation to the tune of Rs.2000/- to the complainant. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Bhupinder Singh
27.07.2016 Member President
