BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

 Date of filing :  04.04.2014

                                                                                              Date of order : 20.10.2018

PRESENT:

Shri. Cherian K. Kuriakose,                                    President

Shri. Sheen Jose,                                                  Member,

Smt. Beena Kumari V.K.                                        Member.

                            CC.No.170/2014

                                   Between

O R D E R

Beena Kumari V.K.   Member 

1)     A brief statement of facts of this complaint is as stated below:

    The complainant planned an European trip with his family of 4 members and the 1^st opposite party – Kuoni Travel India (P) Ltd., Cochin offered a tour for 13 days in 9 countries for an amount of Rs.1,68,120/- per person which is inclusive of all expenses including taxes, UK Visa, deviation from the prescribed route @ of Rs.5000/- per head.  The complainant booked 4 tickets for his family by paying an advance amount of Rs.41,000/- per head, the payment by RTGS was credited to their Deutsche Bank, Mumbai Branch account on 05.04.2012.  On the eleventh hour on 03.05.2012 just a few days before the date of departure, the 1^st opposite party insisted the payment of the balance amount, along with an additional payment of Rs,3500/- per head towards urgent documentation fee and Rs.11,000/- per head towards Airline Fuel surcharge, High season surcharge and YQ charges.  Having paid the entire amount of Rs.7,34,336/-, the 2^nd and 3^rd opposite parties issued to the complainant four tickets in two Airline Reservation codes BF8YZWand IMJN8N.  On 07.05.2012, the 3^rd opposite party received a mail from the 1^st opposite party stating that there is a minor change in the whole itinerary as to return journey is to start from Milan, Italy instead of Munich, Germany.  On further enquiry the complainant could find that the visit to Germany is totally deleted from the itinerary.  Cutting short to 8 countries by deleting tour to Germany, the opposite parties are liable to refund 1/9^th of the total cost of the trip to the complainant.  A lawyer notice dated 29.07.2013 was sent to the opposite parties but no reply made to the lawyer notice by the opposite parties.  It is contended by the complainant that the complainant is entitled to get refund of Rs.58,000/- which amount was collected from him towards urgent documentation, Airline fuel surcharges, High season surcharge and YQ charges and Rs.72,272/- towards proportionate, cost of trip in deleting the tour to Germany, Rs.10,000/- towards compensation for the mental agony suffered by the complainant along with costs.  The complainant sought for orders of this Forum to the opposite parties to pay Rs.145,272/- towards compensation for the deficient service offered for the monetary loss and mental agony suffered by the complainant.

2)     Notices were issued to the opposite parties and the opposite parties filed their versions in response to the notices received by them.

3)     Version of the opposite party 1

        The 1^st opposite party   contended that this complaint is not maintainable either in law or on the facts of this case since the complainant is not a ‘consumer’ as defined in the Consumer Protection Act, 1986 and the complaint is beyond the jurisdiction of the Forum.  Without prejudice to the above, it is contended that this complaint badly suffers from misjoinder of parties that the complainant ought to have been filed only against Kuoni Travel (India) (P) Ltd. and not its brand name SOTC, that the person to whom the complaint is addressed is not the owner but the person merely looking after the sales –activities at the branch situated at Ravipuram, Kochi.  It is submitted that the complainant had booked with the 1^st opposite party a tour for Europe departing on 08.05.2013, after understanding the booking conditions, terms and conditions the tour itinerary and the tour price list and all any claims, disputes relating to tours marketed and co-ordinated by Kuoni Travel (India) (P) Ltd shall be filed before the Forums/Tribunals in Mumbai alone and the Mumbai Tribunals/Forums have the exclusive jurisdiction to the exclusion of all others, that when a partly to the contract disputes the binding nature of the signed documents, it is for him to prove the terms in the contract and the circumstances in which he came to sign the documents.  It is submitted that the rates considered at the time of printing the tour brochure are old rates and are subject to revision based on the actual rates prevalent on the day when the full payment is made.  It is true that the complainant has purchased a package from Kuoni Travel (I) Pvt. Ltd and not from the 2^nd and 3^rd opposite parties.  Instead of full payments the complainant made a token payment of Rs.41,000/- per person 45 days prior to the departure and it is after repeated reminders, the complainant paid he balance tour cost.  Since the complainant required non-standing services (deviation) the same could not be finalized by the 1^st opposite party till a decision was taken by the complainant and payment made, leading to increase in prices and the last minute rush requiring urgent documentation charges.  The consulates require proof of full payment as well as confirmed air tickets to allow the Visa application.  The complainant deliberately and consciously refused or neglected to make the balance tour cost till a few days prior to the departure.  The complainant is solely responsible for the delay and increase in fares and the payment was not made under protest.  It is submitted that instead of taking the schedule departure flight out of Munich, the complainant flew out of Milan.  It is submitted that during peak season the Airlines, Hotels and other service providers levy surcharge and the 1^st opposite party as a tour operator have no other choice but to pass the same to their customers and as per the terms of brochure the customers had agreed to incur such expenses.  It is contended that after having consumed all services from the 1^st opposite party, the claim raised by the complainant to refund 1/9^th of the tour cost is only to take undue advantage that by no stretch of imagination it can be suggested that the 1^st opposite party had colluded with the 2^nd and 3^rd opposite party – Airlines.  There is no deficiency in service on the part of the 1^st opposite party as alleged by the complainant and 1^st opposite party therefore sought for the dismissal of this complaint with costs.

4)     Version of the 2^nd and 3^rd opposite parties

        It is submitted that the 2^nd and 3^rd opposite parties have no contractual obligations with the complainant, save that of solely carrying them form an airport to another airport by air for the price which the 1^st opposite party had charged the complainant a composite price which includes hotels, internal transport within Europe, cost of visits to site seeing tours etc.  The complainant had no issues in respect of the flights.  The service of the  2^nd and 3^rd opposite parties was chosen by the 1^st opposite party as a client and not as an agent of 2^nd and 3^rd opposite parties – Airlines.  It is submitted that there is no privity of contract with the complainant and the 2^nd and 3^rd opposite parties and the entire communications transactions were with the 1^st opposite party. The travel expenses was restricted to the travels from Cochin Airport to London and returning from Milan to Dubai and then to Kochi and the tickets were booked by the 1^st opposite party for and on behalf of the complainants.  It is submitted that the allegations of cheating are unfounded perverse and should be expunged from the proceedings, that in fact, the 2^nd and 3^rd opposite parties are wrongly involved in this case.  Therefore the 2^nd and 3^rd opposite parties may be discharged of any liability against the complainant and it is prayed that the complaint may be dismissed as against the 2^nd and 3^rd opposite parties.

5)     Issues emanated for the consideration of this Forum are as follows:

(i)      Whether the complainant has proved deficiency in service or unfair trade practice on the part of the opposite parties?

(ii)      If so, whether the opposite parties are liable to pay compensation for the deficient service given to the complainant and to refund the cost of tour to Munich along with costs?

6)       The evidence in this case consisted of the oral evidence adduced by the complainant as PW1 and the documentary evidences furnished by the complainant which were marked as Exbt. A1 to A8 and Exbt.A1, A3 and A7 were marked subject to objection.  The opposite party adduced oral evidence through their witness DW1 and the documentary evidences furnished by the opposite parties were marked as Exbt.B1 to B3.

7)       Issue Nos. (i) to (iii)

          Lured by the Exbt.A1 brochure advertisement of the 1^st opposite party – M/s.Kuoni Travel India (P) Ltd that one can visit 9 countries in 13 days by the Tour programme promulgated by M/s.Kuoni Travel India (P) Ltd by name “European Spices” the complainant booked the tour by issuing Exbt.A2 mail to the M/s.Kuoni Travel India (P) Ltd accepting the offer made by the 1^st opposite party.  According to the Exbt,.A1 brochure the 1^st opposite party had promised that on the day 12 of the tour programme after shopping at the famous Swarovski crystals the tour group will proceed to Munich, the third largest city in Germany and will stay overnight at the hotel in Munich.  There is no dispute to the fact that the complainant had paid entire tour cost for visiting 9 countries in 13 days.   The case of the complainant is that the tour to Muniach, Germany was not conducted by the 1^st opposite party.  Thus the promise to visit 9 countries was reduced to visit 8 countries ie., visit to Munich, Germnany was not conducted by the 1^st opposite party.  Therefore the complainant sought for the refund of 1/9^th of the tour cost paid by the complainant.  In the version the 1^st opposite party stated nothing about the non-conduct of tour to Munich, Germany.  The above act of the 1^st opposite party amounted to deficiency in service on the part of the 1^st opposite party and the complainant is found entitled to refund of 1/9^th of the tour cost of Rs.72272/- paid to the 1^st opposite party by the complainant ie., the complainant is entitled to get refund of Rs.72,272/- being proportionate cost of the trip in deleting to the tour to Munich, Germany.

8)       The complainant has sufficiently proved deficiency in service on the part of the 1^st opposite party.  Therefore the complainant is entitled to get compensation for the mental agony and inconvenience suffered by the complainant.  We allow the compensation amount of Rs.10,000/- as claimed by the complainant.

9)       The complainant has spent his valuable time and money to contest this case before this Forum.  Therefore the complainant is entitled to get costs of this proceedings.  We allow costs of Rs.5000/-.

10)     This Forum is not empowered to decide any quantum dispute between the complainant and the 1^st opposite party.  Therefore except the above said reliefs, no other relief is found allowable.  There is no order as against the 2d and 3^rd opposite parties as there is no privity of contract between the complainant and the 2^nd and 3^rd opposite parties.

11)     In the result this complaint is allowed in part and we direct as follows:

1)       The 1^st opposite party shall refund to the complainant Rs.72,272/- being the proportionate tour cost to Munich, Germany.

2)       The 1^st opposite party shall pay Rs.10,000/- towards compensation for the deficient service offered to the complainant.

3)       No orders issued against the 2^nd and 3^rd opposite parties as there is no privity of contract between the complainant and the 2^nd and 3^rd opposite parties.

          4)       The 1^st opposite party shall also pay Rs.5000/- towards costs.

        The above orders shall be complied with, within 30 days from the date of receipt of a copy of this order.

        Pronounced in the open Forum on this the 20^th day of October 2018.

Sd/-Beena Kumari V.K., Member

Sd/-Cherian K. Kuriakose, President

Sd/-Sheen Jose, Member

Forwarded by Order

Senior Superintendent

                                                APPENDIX

Complainants Exhibits

Opposite party's Exhibits:         

Exbt. B1      ::  to whosoever it may concern dated 02.05.2016.                     
Exbt. B2      ::  copy of booking form

Exbt. B3      ::  copy of booking form dated 08.05.2013

Depositions  :

          PW1  ::        Jacob Joe Chiramel

          DW1  ::        Sunil Chandran

Date of Despatch   ::

          By Hand      ::

          By Post       ::

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