BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    12^th DAY OF NOVEMBER 2019

Complainant/s: -                           

Sri.K.S.Venkatesh

and 05 others,

No.29, West Park Road, Malleswaram,

Bengaluru-03.

Inperson  

V/s

Opposite party/s:-    

The Manager

SOTC

Chandranagar,

No.185/7, 8^th Main

Road, 3^rd Block,

East Jayanagar,

Bengaluru-11.

Rep.by Manager

By Advocates M/s.Lexplexus

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party (herein after called as OP) to pay the cost of the air ticket of Rs.7,98,000/-; to pay Rs.30,000/- towards incidental expenditures; to pay Rs.10,000/- towards litigation charges; to pay Rs.10,000/- towards compensation; in all Rs.8,48,000/- with interest at 12% p.a. and to award such other reliefs.

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

The Complainant submits that, being satisfied with the offer of the OP and their oral briefing regarding their commitment for comfortable journey, he and his family, his co-brother and sister in law decided to be a part of the tour “7 days Hong Kong & Macau Delight Tour” and paid the necessary cost at Bengaluru. The Complainant further submits that, they were denied boarding of direct flight and instead they were routed in longer route thereby taking more time to reach HongKong. At Hongkong, the accommodation provided was not to the desired level and in fact was not fitting even one person leave alone a minimum of two. In view of delayed arrival at Hongkong, the incity tour was curtailed and they could make them visit only two places much against to the places shown in tour itinerary for the day 2. Two of the participants who were senior citizens were made to carry their luggage at many points without any minimum assistance considering the age. At some places, they had to carry the luggage involving crossing of roads etc., endangering their lives. After departure from Hongkong, they reached Macau, around 0830pm and by the time they freshened up and completed dinner, it was time to bed and no site seeing was planned nor they were taken around, knowingly well that they had the time available at disposal was limited and inadequate, they have not shown any interest in planning for the site seeing. Sooner they got up in the morning and got ready, they were chased to the ferry to reach on time to board the flight back to India. The much published site seeing on day 7 remains a dream and on paper without being having a look with the naked eyes. The Complainant had made all earnest attempts to get the issue resolved by the OP, since there has been no response filed this complaint.

2a. Complainant filed reply to the version of OP reiterating the contents of the complaint. Further submits that, they have considered SOTC as the OP since Kuoni Travel (India) Pvt. Ltd., is operating under the name and style of SOTC. Hence, requested this forum to consider Kuoni is the legal entity and the actual OP in this complaint. Further, they given the details of the other Complainants:

Complainant no.1/K.S.Venkatesh, the Complainant

Complainant no.2/Anitha Venkatesh W/o Complainant no.1,

Complainant no.3/K.V.Vineeth S/o Complainant no.1,

Complainant no.4/Rachana Vineeth W/o Complainant no.3, Complainant no.5/B.R.Krishna co-brother of Complainant no.1,

Complainant no.6/G.S.Saraswathi sister in law of Complainant no.1

Further submits that, another family from Bengaluru had visited same tour, they were booked direct flight and Macua sightseeing was shown to them. Thereby, why OP had booked two different flights for two different families when both families were travelling from Bengaluru itself. However, they are only six persons who were denied Macau sightseeing. They are not claiming entire trip conducted by OP to everyone was defective instead their part of tour for Macau was denied.  The details of terms and conditions given by OP are not even legible or can be read by any person with reasonable effort. But OP made them to sign on the terms and conditions and made to agreed as part of procedure to avail the said tour.

3. After issuance of notice, OP did appear and filed version.  In the version, OP submits that, the complaint suffers from misjoinder of parties. Kuoni Travel (India) pvt., ltd., is a legal entity and the OP named in the cause title is its registered trademark. It is Kuoni which is capable of suing and being sued in its own name. It was communicated to the Complainant that Kuoni is marketing and coordinating the tours under its brand name SOTC. OP further submits that, in the cause title, the Complainant has stated “K.S.Venkatesh and five others”. The details and description of the remaining 5 Complainants are not provided in the complaint, but the 6 Complainants have signed the complaint. In the absence of the description of the 5 other Complainants, the complaint on behalf of 5 of them is not maintainable as the OP is not aware who they are and if they indeed utilized the services of the OP. Further, this forum does not have the jurisdiction to try and entertain the present complaint as the parties have by contract conferred exclusive jurisdiction upon the courts at Mumbai. In the version, OP further submits that, the Complainant after fully understanding the terms and conditions and the nature of the tour signed the booking form for “7 days Hong Kong & Macau Delight Tour”. Only on being fully satisfied with the services and details of the tours, travel as well as the availability of flights, that would be taken by him, the Complainant decided to go ahead with the booking of the said tour. Further he confirmed his departure by paying the non-refundable booking amount of Rs.10,000/-. Further the flight given to the Complainant for the journey from Bengaluru to Hongkong was in a scheduled international airline and arrived as per schedule timings. In any event the OP reserved the liberty to modify/alter the travel arrangements including the flights. As per the itinerary, the Complainant was provided with 4 star accommodations as indicated to him in the booking form and itinerary. Having contracted the same, he is now estopped from questioning the same. The Complainant was shown all the places as per the programme scheduled in the itinerary. Further he has failed to give the details of the specific places, the visitation of which, he alleges to have been deprived of. The Complainant was well informed about the fact that they were travelling on group tour and that each traveler would be responsible for his own health and well being. The itinerary was scheduled and programmed in such a manner so as to facilitate the entire group to spend an evening at Macau which is known for its the much popular night life and casions. Hence, OP has clearly followed the itinerary and it cannot be alleged the services of the OP have been deficient in any manner whatsoever. The sole reason for the Complainant not being able to avail the sightseeing in Macau was his failure to adhere to the time schedule set in the itinerary and the OP cannot be held responsible for the same. Further, it is the same tour escort who in fact confirmed that though arrangements were made to take the Complainant’s sightseeing, en-route to their departure, it was a delay on the part of the Complainant which led him to skip their sightseeing and proceed directly for departure. The OPs are tour operators and can only book, confirm and make arrangements for the travel and stay of its customers and they have no say in the standards maintained by the hotels or the airlines. The Itinerary was for 7 days which included a round trip cruise from Hongkong to China to Vietnam and back to Hongkong. The Complainant has not uttered a word regarding the said cruise thereby implying that he was satisfied with the said cruise and had no complaints regarding the same. After the Complainant has completed and enjoyed his holiday, he is filing this complaint on frivolous grounds without explaining the alleged deficiency of service on the part of the OP. Hence on these grounds and other grounds OP prays for dismissal of the complaint.

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents. OP filed affidavit evidence and produced the documents.  Both filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether this forum has got the territorial jurisdiction to try this case ?

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

3. What order?

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

Point No.1:- In the affirmative

Point No.2:- In the negative

Point No.3:- 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 OP. It is the specific contention of the OP that, the names of other five Complainants are not mentioned in the complaint. In this context, Complainant no.1 produced detail particulars by showing names of other five Complainants. Further submits that, other five Complainants are being the signatory to the said complaint. We have gone through the contents of the complaint as well as the reply given by the Complainants in respect of the contention taken by the OP. It is not in dispute that, other five Complainants are being the signatory to the complaint and names of them are specifically furnished. But the only lacuna is that, the name of them are not incorporated in the cause title by way of amendment. This forum adjudicates the complaint by adopting the summary trial. As the detail particulars of other five Complainants are already furnished, hence at the most it may be labeled as irregularity and not illegality which does not vitiate the proceedings.

8. With regard to the territorial jurisdiction is concerned, the learned counsel for the OP has taken the specific contention stating that, it is only the Mumbai consumer forum shall have the jurisdiction to try and dispose the case. The booking form and terms and conditions, duly signed by the Complainant, produced at Doc.2 contain the jurisdiction clause. The jurisdiction clause as stated in the terms and conditions reads thus:

Jurisdiction: for all claims of whatsoever nature relating to the tours marketed/coordinated by Kuoni Travel (India) Pvt., Ltd., the courts, forums and tribunals in Mumbai alone shall have jurisdiction.

In this context, he placed reliance on the decision reported in AIR 1989 SC 1239 in the case of A.B.C Laminart Pvt., Ltd., and Anr., vs. A.P.Agencies, wherein the Apex Court has held that when more than one courts have jurisdiction, contract to vest jurisdiction in one of them is not against the public policy and the complaint filed in a court which was excluded by the contract is not maintainable in law.

9. Per contra, it is the contention of the Complainants that, since the air tickets were booked from the Bengaluru, hence this forum has got jurisdiction. We have gone through the booking form/Doc.2 produced by OP, wherein the residential address of the Complainants is shown as No.29, West Park, Malleshwaram, Bengaluru. The itinerary of the Complainants start from Bengaluru, hence the cause of action starts from Bengaluru itself, which continuous. In this context, the clause incorporated by the OP stating that Mumbai consumer forum has territorial jurisdiction has no legs to stand, as the said terms & conditions are unreasonable. Accordingly, we answered point no.1 in the affirmative holding that this forum has jurisdiction.

10. Point No.2: We have gone through the contents of the complaint as well as the version filed by the OP. It is not in dispute that, all the Complainants were availed the service of the OP for their itinerary. At the time of booking, OP has furnished the detail particulars of the tour. All the Complainants have made certain allegations stating that, their itinerary program was not in accordance with as notified by the OP. Per contra, OP submits that, the Complainants knowing fully well accepted the terms and conditions. It has provided all the facilities as per the terms and conditions. All the Complainants have already availed the tour facilities, enjoyed the same and safely returned to their respective places. After returning, they cannot raise their grievances that, the facilities provided by the OP are not up to the mark. In this context, we are of the opinion that, complaint filed by the Complainants did not disclose as to how the OP is found to be deficient. Some general allegations being made on the OP which cannot be acceptable. The claim sought by the Complainants are in respect of return the cost of the air ticket of Rs.7,98,000/-, incidental expenditures of Rs.30,000/-, litigation cost of Rs.10,000/-, compensation of  Rs.10,000/- in all Rs.8,48,000/- with interest at 12% p.a. The available materials on record clearly go to show that, none of the grievances are proved by the Complainants by adducing cogent evidence. Only the bar allegations cannot be taken in to consideration. Hence, we do not find any merits in the complaint filed by the Complainants to get redress their remedy. Accordingly, we answered the point no.2 in the negative.

11. Point no.3: In the result, we passed the following:

ORDER

          The complaint filed by the Complainants is dismissed.  Looking to the circumstances of the case, we direct both the parties to bear their own cost.  

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 12^th day of November 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainant dated.24.12.14

Sri.K.S.Venkatesh

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OP dated.13.02.15

Sri.Donavin Menezes, Tour Manager

Sri.Avanendra Avuthu, General Counsel   

Copies of Documents produced by OP

            MEMBER                                           PRESIDENT