Tamil Nadu

North Chennai

CC/84/2015

M/s.Akula Raghu Deena Kumar - Complainant(s)

Versus

The Manager, Kuoni Travel India Private Ltd - Opp.Party(s)

T.V.Sekar and C.K.Lavanyavathi

05 Jul 2017

ORDER

 

                                                            Complaint presented on:  27.04.2015

                                                                Order pronounced on:  05.07.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

WEDNESDAY THE 05^th DAY OF JULY 2017

 

C.C.NO.84/2015

 

 

Mr.Akula Reghu Deena Kumar,

No.24, Basuvayyan Street,

Old Washermenpet,

Chennai – 600 021.

                                                                                    ….. Complainant

 

..Vs..

The Manager,

M/s.Kuoni Travel India Private Limited,

8^th Floor, Tower A, Urmi Estate,

95, Ganath Rao Kadam Marg,

Lower Parel (w),

Mumbai – 400 013.

.....Opposite Party

Date of complaint                                 : 01.06.2015

Counsel for Complainant                      : M/s. T.V.Sekar & C.K.Lavanyavathi

Counsel for    Opposite Party                   : M/s. Sampathkumar & Associates &

                                                                    R.Ramani

 

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the Opposite Party  to pay a sum of Rs.4,55,653/- together with interest at the rate of 18%  per annum from the date of Complaint and till the date of realization and also to pay a sum of  Rs.6,00,000/- towards compensation for mental agony with cost of the Complaint   u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

           The opposite party arranged group tour Far East 2013. The Complainant and his wife with their minor son and the complainant relative G.K.Balachander family agreed to participate  in the tour programme. The complainant paid for him and his family members a sum of Rs.3,36,773/- by way of cheque dated 07.05.2013 to the opposite party. The tour operator/opposite party took responsibility for obtaining the visa from the representative consulates of the countries to be visited as tourist and also to book Air-tickets, book for cruise segment, boarding and lodging in various countries.  The tour programme to start on 12.05.2013 from Chennai and the opposite party requested all the family members to be ready with their luggage and things for the tour.

          2. The opposite party informed the complainant that the visa for him alone has not been received and for all others his wife, minor son and the members of the G.K.Balachander’s family have been received. Even on 11.05.2013 he was informed that the visa has not been received from the Singapore Embassy. The opposite party suggested that he can send his wife and minor son to travel with them along with Mr. G.K.Balachander’s family and the Complainant can join in another two days as the visa for him would be received in a day. The Complainant has not agreed the suggestion of the opposite party that as his wife and minor son alone could not be sent and they have no experience in the foreign travel and consequently the Complainant and his family members could not travel.

          3. The Complainant sent an e-mail dated 03.06.2013 demanding to refund the amount paid by him. The opposite party replied on 05.09.2013 that they would refund USD $ 315 for each person aggravating to USD $ 954 which is approximately equivalent of Rs.56,700/- again the Complainant sent an e-mail dated 26.09.2013 to refund the entire amount paid by him. The opposite party failed to refund the amount caused inconvenience and mental agony to the Complainant. Hence the Complainant filed this complaint to refund the amount paid by him and also compensation for mental agony with cost of the complaint.

4. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          The opposite party clearly mentioned in their brochure containing terms and conditions that the Complainant should pay fully payment within 45 days prior to departure. The Opposite Party states that they do not own any Airlines, Hotels, Cruise companies etc. and merely book for their clients. Similarly, Opposite Party has no role to play in the visa processing and issuing process, except that of a document courier between the Complainant and the Embassies/Consulates of independent sovereign states. Hence, it is not correct to state that he had taken up the responsibility for obtaining visa for Complainant’s group as alleged in the Complaint. The Opposite Party further states that it is the sole prerogative of consulates for mandating what documents are to be annexed to a visa application, what questions are to be asked or additional documents to be sought and the Opposite Party has no role to play in it.

          5. The Complainant only has to submit documents to the Embassies. However, he failed to do so resulting the Embassies seeking additional documents and it was only after that they were submitted the visa of the Complainant was realized by the Singapore embassy. The Singapore embassy released the visa for all the participants of the tour except that of the Complainant. So, the Opposite Party suggested that the participant may proceed with the tour programme and the Opposite Party would go out of its way to request an early return of the Complainant’s passport as well as re-booking for Complainant the very next day and making arrangement for his family to be looked after during the short time span. All this was done merely to help the Complainant knowing full well that they were travelling as a family group and that his wife and child would be well looked after by his close relative for the initial 24 hours period.

          6. Since there was a delay in obtaining visa from the Singapore embassy, the Complainant decided to abandon his travel plan and become a no-show which led to his being liable for 100% cancellation charges. The decision of the Complainant to abandon the tour was on his own violation  and the Opposite Party did not have any control over his decision. So, there was no deficiency in service on the part of the Opposite Party at any level.  As a matter of  gesture offered to refund 945 USD $ to the Complainant as a gesture which was accepted by the Complainant in his reply dated 23.01.2015 through his counsel.   . Hence the opposite party has not committed any deficiency in service and prays to dismiss the complaint with costs.

 

 

7. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

8. POINT NO :1 

           It is an admitted fact that the opposite party/tour operator arranged group tour to Far East Countries and in the said tour, the Complainant family himself, his wife and his minor son and the Complainant’s  relative Mr.G.K.Balachander  and his family members agreed to participate  in the tour and the said tour schedule to start on 12.05.2013 and the Complainant also paid  a sum of Rs.3,36,773/-  by way of Lakshmi Vilas Bank cheque, Chennai main branch dated 07.05.2013 was drawn in favour of the opposite party and paid to him for three members and just before one day start of tour the opposite party informed the Complainant that all the tour participants including the Complainants, his wife and his son got visa from Singapore visa, excepting visa for the Complainant and since the Complainant did not get his visa they have dropped the tour programme and the Complainant did not agree to send his wife and minor son alone.

          9. The Complainant contended that it is the opposite party who took up the responsibilities for obtaining visa from the representative consulate of the countries  to be visited and also to book air tickets and boarding and lodging in various countries and however the Complainant visa only have not been arranged by the opposite party is deficiency on his part and further the opposite party asked the Complainant to send his wife and minor son to the tour programme and his visa will be received in a day and he can join with them in  two days and that was also refused by the Complainant and they were unable to proceed the tour as the Complainant visa alone was not arranged by the opposite party and therefore the opposite party has committed deficiency in service.

          10. The opposite party would contend that it is the travelers who are submitting the application to the visa authorities and he acted only  a courier between the Complainant and the embassy and the visa for the Complainant not issued to him by the Singapore Embassy is not deficiency on the part of the opposite party and the opposite party agreed to refund USA $ 945 to them and that amount was also accepted by the Complainant in Ex.A7 and thereafter the complaint filed by him is not maintainable and prays to dismiss the same.

          11. It is not in dispute that the Complainant paid a sum of Rs.3,36,773/- to the opposite party for him, his wife and their minor son and the Complainant wife and minor son have been issued with Singapore Embassy visa  and not issued visa to the Complainant. According to the Complainant it is the opposite party who took the responsibility for obtaining the visa to the Complainant and thereby failed from his responsibility. The opposite party refuted such allegations that his responsibility to obtain visa and further as per the terms and conditions the tour participants responsibility only to apply for the visa with complete set off documents. The opposite party in his written version pleaded that the Complainant failed to submit documents to the satisfaction of the Embassy and hence the Embassy sought additional documents and thereafter he submitted documents and hence there was a delay in releasing visa to the Complainant by the Singapore Embassy. The Complainant wife and his minor son were issued the visa by the same Singapore Embassy to them. Therefore the documents submitted by them should  have also been submitted as that of  the Complainant. As the Complainant wife and minor son issued with visa and the Complainant was not issued with visa only   leads to a conclusion that as per the statement of the opposite party,  the said Opposite Party had not properly submitted his application. The opposite party admits that he acted as a courier between the Complainant and the Embassy. Therefore the opposite party only submitted all the applications with the documents obtained from the travel tour participants to the Embassy. Hence while submitting those documents to the Embassy, it is the opposite party only has not submitted the documents of the Complainant properly to the Embassy and that is why the visa was not issued to the Complainant is an negligent act on the part of the opposite party.

          12. The Hon’ble State Consumer Disputes Redressal Commission, West Bengal held in FA NO.381/08 order dated 17.12.08 (M/s Kuoni Travels (India) Pvt. Ltd., Vs. Mr.Dilip Kumar Choudhary) that considering the itinery and the representation of the travel agent, we find that the travel agent was to make all arrangements in doing the arrangements for obtaining visas. In the case in hand also, the opposite party has not obtained visa for the Complainant. More pertinently, the opposite party in the case in hand and the Appellant/opposite party in the above referred State Commission case are one and the same. Further, as held by the State Commission, West Bengal and the opposite party in this case also failed to obtain visa on his part is deficiency.

13. The next contention of the opposite party in the written version that the Complainant’s wife and their minor son can start tour as scheduled and the Complainant will be issued visa in a day and he can join tour with his family members after some time. Such stand of the opposite party cannot be accepted and the Complainant also rightly rejected that offer. Therefore, we find that the opposite party as travel agent failed to obtain visa to the Complainant is negligent act on his part and hence, it is held that the opposite party has committed deficiency in service.

14. POINT NO

          Admittedly the Complainant paid a sum of Rs.3,36,773/- for three persons including himself. The Complainant claimed the amount paid by him with 18 % percent from the date of payment i.e 07.05.2013 till the filing of the Complainant at the rate of 18 % interest per annum aggregating a sum of Rs.4,55,653/- including interest of Rs.1,18,880/- in the Complaint. The 18 % amount is claimed by the Complainant is on the higher side and the same cannot be awarded. The Complainant sent Ex.A1 and Ex.A3 e-mails to the opposite party to refund the amount paid by him. The opposite party gave Ex.A2 Ex.A4 reply that as a gesture he will refund USD $ 315 per person for 3% and totally he will refund USD $ 945/-.  Due to the opposite party negligent act of not obtaining visa the Complainant and his family members forced to cancel the tour and such cancellation of tour only due to the deficiency in service of the opposite party. Therefore in such circumstances it would be appropriate to order that the Complainant is entitled for the amount of Rs.3,36,777/- towards paid by him. The Complainant paid such amount by way of cheque on 07.05.2013 and therefore from that day of cheque till the date of this order a reasonable interest has to be ordered for the aforesaid amount. Therefore in the aforesaid circumstances, we order that the opposite party can be directed to refund  a sum of Rs.3,36,773/- with 9   % interest from  07.05.2013 to till the date of this order to the Complainant.

          15.  The Complainant and his family members consciously paid the amount to go to visit various countries and due to the negligent act of the opposite party they were unable to visit those countries in the tour, they were put to mental agony is accepted and for the same it would be appropriate to order to pay a sum of Rs.50,000/- by way of the compensation to the Complainant and also to pay sum of Rs.5,000/- litigation expense.

          In the result the Complaint is partly allowed. The Opposite Party is ordered to refund a sum of Rs.3,36,773/- (Rupees three  lakhs thirty six   thousand   seven hundred and seventy three only) with 9% interest from 07.05.2013 to till the date of this order and also to pay a sum of Rs. 50,000/- (Rupees fifty  thousand only) towards compensation for mental agony, besides a sum of Rs. 5,000/- (Rupees five thousand only)  towards litigation expenses.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 05^th  day of July 2017.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 01.06.2013                   Complainant to Opposite Party

Ex.A2 dated 03.06.2013                   Opposite Party to Complainant

Ex.A3 dated 18.07.2013                   Complainant to first Opposite Party

Ex.A4 dated 05.09.2013                   Opposite Party to Complainant

Ex.A5 dated 26.09.2013                   Complainant to Opposite Party

Ex.A6 dated 17.10.2013                   Opposite Party to Complainant

Ex.A7dated 23.01.2015          Complainant counsel to Opposite Party

Ex.A8 dated 03.02.2015                   Opposite Party to Complainant counsel

Ex.A9 dated 18.03.2015                   Complainant counsel  to Opposite Party

Ex.A10 dated 06.04.2015                 Opposite Party to Complainant counsel

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

 

                                      ……..  NIL …….

MEMBER – II                                                               PRESIDENT