BEFORE THE DISTRICT CONSUMER’S FORUM: KURNOOL

Present: Sri.Y.Reddappa Reddy, M.A., L.L.M., President,

And

Smt. S.Nazeerunnisa, B.A., B.L., Lady Member

Tuesday the 19^th day of March, 2015

C.C.No.03/2013

Between:

Somisetty Venkateswarlu,

S/o Late S.Venkata Swamy,

R/o H.No.40/809/B/B,

Dharmapet, Kurnool-518 004.                                …Complainant

-Vs-

1. The Managing Director,

    The Thomas Cook (INDIA) Limited,

    Regd., Office: Dr.D.N. Road,

    Fort, Mumbai-400 001.

2. Senior Manager,

    Leisure Travel,

    Thomas Cook (INDIA) Limited,

    6-1-57, Nasir Arcade, Saifabad,

    Hyderabad-500 004.

3. K.Narayana, Agent,   

    Sai Raj Communications and Travels,

    40-318-10, Nalanda Complex,

    Rajavihar Centre, Kurnool-518 001.                     …OPPOSITE PARTIES

This complaint is coming on this day for orders in the presence of Sri.B.Balaji Singh, Advocate for complainant and Sri.G.Madhu Sudhana Reddy, Advocate for opposite parties 1 and 2 and Sri.M.Sivaji Rao, Advocate for opposite party No.3 and upon perusing the material papers on record, the Forum made the following.

                                                                                                     ORDER

(As per Present: Sri.Y.Reddappa Reddy, President,)

      C.C. No.03/2013

1.       This complaint is filed under section 11 and 12 of Consumer Protection Act, 1986 praying:-

1. To directing the opposite parties jointly and severally to refund the amount of Rs.3,50,000/- and Rs.50,000/- towards compensation for causing the petitioner’s mentally and physically harassment for their miss-management and also direct the opposite parties to pay costs of the petition in the interest of justice.

2.    The facts of the complaint in brief run as follows:- The petitioner is a retired Civil Assistant Surgeon and residing at Kurnool.  Basing on the information given in the brochure relating to opposite parties travels, petitioner along with his wife booked “Grand Bargain Tour of Europe” an escorted tour of summer with departure date 16^th May, 2012 conducted by the opposite parties.  Initially he paid an amount of Rs.50,000/- towards advance through opposite party No.3, an authorized agent of the Thomas Cook (India) Limited and the opposite party No.1 also issued a customer copy dated 03.01.2012 with regard to the receipt of Rs.50,000/- towards booking deposit for two adults for Grand Bargain Europe Tour on 16.05.2012.  Opposite party No.3 gave a copy of the agreement between the petitioner and opposite party No.3 on behalf of Thomas Cook, Hyderabad opposite party No.2.  On 12.05.2012 the petitioner paid the remaining balance of Rs.3,00,000/- including all customer charges i.e., Visa, Airport etc., to opposite party No.3.  Totally the petitioner paid an amount of Rs.3,50,000/- to opposite party No.3.  Opposite party No.3 being the Authorized Agent for Thomas Cook, Hyderabad, the opposite party No.2 sent to his Account No.00210410000335 on 14.05.2012 through H.D.F.C. Bank to an amount of Rs.5,61,040/- and Rs.5,97,040/-.  On the same day i.e., on 14.05.2012, the petitioner received a phone call stating that his Son-in-law is in Apollo Hospital, Bangalore due to Heart Attack at 12.00 Noon.  Immediately, the petitioner informed the opposite party No.3 about the event beyond his control and requested to cancel his programme to Grand Bargain Europe Tour on the even date itself.  Opposite party No.3 informed to the petitioner that just now he paid the amount to opposite party No.2 and he would contact with opposite party No.2 and try to get repayment of the amount.   The petitioner informed the same to opposite party No.2 also about the cancellation explaining about the event beyond his control.  Opposite party No.2 also promised to the petitioner about the refund of the amount.  Subsequently, whenever the petitioner call the opposite party No.2 he will keep holding the call and then will just say it is taking time.  He used to postpone the same, week by week and he used to disconnect the call even without getting to discuss the issue.  Petitioner also in contact with opposite party No.3 about the refund of the amount.  But no reply is received either from opposite party No.2 or opposite party No.3.  After a long gap of the time i.e., on 25^th September, 2012 opposite party No.2 gave a reply to the petitioner that no refund is possible on the ground that the cancellation was made one day prior to departure i.e., on 15^th May, 2012.  The petitioner paid remaining amount to opposite party No.3 on 12^th May, 2012 and opposite party No.3 sent the amount including the petitioner’s amount to opposite party No.2 on 14^th May, 2012 only.  The petitioner cancelled the tour as the event was beyond his control.  Subsequently the Son-in-law of the petitioner expired due to Heart Attack.  The petitioner got issued a legal notice on 25.10.2012 to opposite parties 1 to 3.  It was served on them but did not issue any reply.  The conduct of opposite parties 2 and 3 in non refund of the amount is not proper and correct.  Hence he prays to order refund of the amount of Rs.3,50,000/- and Rs.50,000/- towards compensation for causing mental agony and costs of the petition. 

3.       On service of notice opposite parties 1 and 2 engaged one advocate and opposite party No.3 engaged separate advocate and filed written versions on behalf of opposite parties 2 and3 separately. Memo filed on behalf of opposite party No.1 by adopting written version of opposite party No.2.  The sum and substance of the written version filed on behalf of the opposite party No.2 in brief run as follows.    They admitted with regard to payments of Rs.50,000/- towards advance and Rs.3,00,000/- on 12.05.2012 by the petitioner to opposite party No.3.  It is also admitted the petitioner informed to opposite party No.3 on 14.05.2012 itself that his Son-in-law was admitted in Apollo Hospital, Bangalore due to Heart Attack and opposite party No.3 inturn informed the same to opposite party No.2.  In para 7 of the written version it is stated as per the trade practice, this  respondent collects advance amounts for the tour so that the arrangements can be made for the successful completion of the tour by making travel arrangements, hotel accommodation etc., aboard.  This planning is necessary in the event of the customer getting a Visa of the tour, then the tour would be comfortable and all the arrangements would be in place.  This respondent being a premier travel agency, having its business all over the world and it is necessary to collect amounts in advance for bookings of all the facilities in advance, as it would be difficult to book the facilities in the last hour.

As per the terms and conditions for booking tour with this respondent, it is clearly stated that the amounts paid for booking of the tour cannot be refunded back to the complainant in the event of cancellation of the tour for any reason, however an exception is made depending on the date of cancellation of the tour by the complainant.  He further stated all the cancellations will attract the following cancellation charges.

In view of the above terms and conditions this respondent is not liable to refund the amounts paid by the complainant.  The amount cannot be refundable, as the amounts have been paid by this respondent to all the bookings done in advance for the tour of the complainant and his spouse.  Hence he prays to dismiss the complaint with costs.

          The facts of the written version of the opposite party No.3 in brief run as follows.  He denied all the allegations made by the complainant in general.  In Para 2 it is stated that the complainant and his wife had booked a tour namely Grand Bargain Europe Tour through this opposite party No.3 which was arranged by opposite parties 1 and 2.  The tour has to be commenced from 16.05.2012 onwards and the advance of Rs.50,000/- was paid by the complainant and the same was remitted by opposite party No.3 on Online mode to opposite parties 1 and 2.  Again on 12.05.2012 the complainant paid an amount of Rs.3,00,000/- to this opposite party No.3 and the same  is also remitted to the opposite parties 1 and 2. 

On 15.05.2012 the complainant requested this opposite party No.3 to cancel his tour as his Son-in-law was not feeling well.  Immediately opposite party No.3 intimated the same to opposite parties 1 and 2.

Opposite party No.3 only an agent.  The duty of this opposite party is only to collect the amounts from the customers and the same has to be remitted to the opposite parties 1 and 2.  In this case also opposite party No.3 collected the amount and the same was remitted to opposite parties 1 and 2.  The cancellation of tour and returning of the tour amount can be made by the opposite parties 1 and 2 only as per the terms and conditions of the tour which are supplied to the complainant. If the tour is cancelled within one week prior to the tour commencement date, no amount is refundable.  In this case the complainant has cancelled his tour within one day prior to commencement of the tour.  So the amount paid for booking of the tour would not be refunded back to the complainant under any circumstance.  There is no deficiency of service on the part of the opposite parties.   Hence he prays to dismiss the opposite party No.3 with costs.

4.       The complainant field sworn affidavit in support of his contention and also marked Ex.A1 to Ex.A11.  Senior Manager of opposite party No.2 filed sworn affidavit in support of his contention and marked Ex.B1.  Opposite party No.3 also filed sworn affidavit in support of his contention.  But he did not produce any documents in support of his case. 

5.       After closure of evidence on behalf of the both parties written arguments submitted by the both parties and submitted oral arguments in support of their respective contentions. Both the counsel submitted written arguments also by reiterating their contentions of the complaint and written version respectively.  The counsel for the petitioner saying to pass an order in favour of the complainant and against the opposite parties for refund of the amount which he paid to the opposite parties 1 to 3 towards advance of tour programme.  The opposite parties are saying as the cancellation was made by the petitioner at the last minute.  It is not possible to refund any amount as by that date itself they have made the arrangements for transportation, comfortable stay etc., to all the passengers who made payment by then.  As the petitioner informed about the cancellation of tour at last movement he is not entitled for refund of any amount.  Hence he prays to dismiss the complaint against opposite parties with costs. 

6.       Now the points that arise for consideration are:

1. Whether there is any deficiency of service on the part of opposite parties 1 to 3?

2. If so? To what relief the complainant is entitled for any relief?

7.      POINT No.i:- Opposite parties 1 and 2 are the persons who are arranging the tour throughout the world.  Opposite party No.3 is the agent of opposite parties 1 and 2.  In the instant case after knowing through advertisement and brochure issued by opposite parties 1 and 2, the petitioner approached opposite party No.3 who is no other than the authorized agent of opposite parties 1 and 2, paid a sum of Rs.50,000/-  by way of advance on 03.01.2012 by conforming himself his wife are intending to make use of Europe trip 14N-15D Grand bargain Europe.  On 06.01.2012 an agreement was entered between the complainant and opposite party No.3 as mentioned under Ex.A1.  Ex.A1 does not contain the terms and conditions and how the refund can be made in the event of the cancellation of the tour by the traveler and vice versa.  Opposite parties are mainly harping upon the terms and conditions which are incorporated on the reverside of Thomas Cook Holidays Booking Form. But this form does not contain the date on which the signature of the complainant was obtained by opposite party No.3.  The terms and conditions which are mentioned reverside of Ex.A3, are printed in a very small letters, which is not possible to read by any one in normal condition.  Opposite party No.3 is the only person who had direct contact with the complainant.  Opposite party No.3 did not say either in his written version or in his sworn affidavit, that at the time when he booked the tour of the complainant after receiving the advance of Rs.50,000/- on 03.01.2012 or on 12.05.2012 after receiving a sum of Rs.3,00,000/- he specifically drew the attention of the complainant to the terms and conditions of cancellation procedure which are available on the reverside of the Ex.A3.  It is also not mentioned either in his written arguments or sworn affidavit that he explained to the complainant that no amount will be refunded if the tour is cancelled within 14 days prior the commencement of the tour.   Basing on the material placed before this Forum the tour programme has to be commenced on 16.05.2012.  The petitioner paid the amount of Rs.3,00,000/- to opposite party No.3 on 12.05.2012.  According to the opposite party No.2 they have to make payments to various persons to provide facilities such as transportation accommodation etc., well in advance.  If the contention of opposite party No.2 is true and correct they ought to have been closed receipt of the amount from the travelers at least 14 days prior to commencement of the tour programme.  As they have to make   necessary arrangements well in advance.  Receipt of amount by opposite party No.3 from the petitioner on 12.05.2012 and transferring the same to opposite parties 1 and 2 immediately by opposite party No.3 create a doubt whether the contention of the opposite party No.2 making arrangement by paying amounts in advance is true or not.  When the complainant did not pay the amount at all time 12.05.2012 except the token amount of Rs.50,000/- there was no scope for opposite parties 1 and 2 to make any advance payments for the trip of complainant and his wife as they did not conform the tour programme till the date of payment of Rs.3,00,000/- on 12.05.2012.  According to the petitioner after payment of said amount they received information that their Son-in-law was admitted in Apollo Hospital, Bangalore for Heart Attack and they informed the same to opposite party No.3 on the same day itself by expressing their inability to go on tour as schedule from 16.05.2012 onwards.  This fact is not in dispute.  On the other hand opposite party No.3 is admitting in his written version and also in his sworn affidavit about the received of information from the complainant.  Immediately after receipt of Rs.3,00,000/- and he informed the same to opposite parties 1 and 2.  In fact opposite party No.2 also used to tell the complainant that they will consider the request of complainant for cancellation and refund, by saying so he made the complainant to move to his office for considerable period.  On 25.09.2012 the Senior Manager of opposite party No.2 sent a letter to the petitioner by saying no refund is possible as it does not possible Thomas Cook (India) Limited to cancel the services one day prior to departure i.e., on 15.05.2012 under Ex.A11.  After receipt of the said letter petitioner got issued legal notice through his counsel under Ex.A8.  As we have discuss above when they have received the amount just few days prior to the commencement of the travel programme. There was no scope for them to make any reservation relating to the petitioner within a span of 24 hours after making payment confirming the tour by him.  The terms and conditions basing on which the opposite parties are relaying which are printed on the riverside of the Ex.A3 is in a very small print which is not at all legible and readable condition and  is unilateral and one side document.  No material is available on record that the cancellation terms were explained to the complainant by opposite party No.3 at any time or he drew his attention to the terms of cancellation available on the reverside of Ex.A3.  In order to establish the circumstance under which the complainant and his wife could not proceed with the tour, they have filed the treatment obtained by their Son-in-law in Apollo Hospital, Bangalore and also the Death Certificate relating to him which are marked as Ex.A6 and Ex.A7 respectively.  These two documents clearly establishes petitioners were not in a position to continue with their tour programme as their own Son-in-law fell sick, admitted in Apollo Hospital, Bangalore for Heart Attack and finally he died in the Hospital itself.  The things are certainly beyond the control of the complainant.  None of these facts are in dispute. Opposite parties 1 to 3 ought to have been taken in to consideration the date on which the complainant made full payment and conformed his programme i.e., on 12.05.2012 and the date on which he informed to opposite party No.3 the circumstance under which they were forced to cancel the tour programme, which was inturn opposite party No.3 informed to opposite parties 1 and 2 and they ought to have been taken a decision by excersing the discretion in positive manner and humanitarian consideration.  As they received the amount just 4 days prior to commencement of the programme the question of making use of cancellation within14 days prior to the commencement of tour programme does not arise.  Thus there is deficiency of service on the part of opposite parties 1 to 3 in not considering the request of the complainant for refund of the amount by taking in to consideration the circumstance under which he could not proceed with the tour.  We hold this point in favoru of the complainant against opposite parties. 

8.      POINT No.ii:- While Answering point No1, we have made it clear when the opposite parties received the amount of Rs.3,00,000/- towards final payment just 4 days prior to commencement of the tour programme the question of making arrangement for transport or accommodation to the complainant and his wife within 24 hours after the confirmation is not believable and there was no scope for the complainant to cancel the programme either 7 days or 14 days prior to commencement of the programme.  Hence we feel it is proper on the part of opposite parties deduct cancellation charges of Rs.1,00,000/- as if the cancellation was made just 15 days prior to the commencement of the programme and refund the balance amount to the complainant.

9.       In the result the petition filed by the petitioner is partly allowed and we direct the opposite parties 1 to 3 jointly and severally to refund the amount paid by the complainant after deducting a sum of Rs.1,00,000/- each to the petitioner and his wife towards cancellation charges.  As the opposite parties did not consider the request of the complainant we feel it is proper to award interest at 9% on Rs.1,50,000/- from the date of repudiation i.e., 25.09.2012 till the date of deposit or payment to the complainant whichever is earlier.  As the petitioner suffered a lot of mental agony because of the irrational behavior and conduct of the opposite parties we feel it is proper to award a sum of Rs.10,000/-  by way of compensation for mental agony  and Rs.2,000/-  towards the costs of this CC.

We direct all opposite parties to pay the amounts as directed above within one month from today failing which the complainant is at liberty to execute this order and realize the same by proceeding against opposite parties 1 to 3 according to law.

          Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 19^th day of March, 2015.

          Sd/-                                                                                         Sd/-

LADY MEMBER                                                                          PRESIDENT

  APPENDIX OF EVIDENCE

         Witnesses Examined

For the complainant:- Nil                     For the opposite parties:- Nil

List of exhibits marked for the complainant:-

Ex.A1           Photo copy of Agreement between Customer and opposite party

                   No.3 dated 06.01.2012.          

Ex.A2          Customer Copy issued by the opposite party No.1 dated 03.01.2012.                 

Ex.A3          Photo copy of Booking Form per family/per tour issued by the opposite party No.3 towards advance deposited along with terms and conditions.

Ex.A4          Photo copy of Counter Foil of HDFC Bank deposited an amount

                   of Rs.5,61,040/- dated 14.05.2012.

Ex.A5          Photo copy of Counter Foil of HDFC Bank deposited an amount of Rs.5,97,040/- dated 14.05.2012.

Ex.A6          Cash Provisional Bill from 14.05.2012 to 16.06.2012 of the patient Mr.D.Arun issued by Apollo Hospital, Bangalore.

Ex.A7           Photo copy of Death Certificate.

Ex.A8           Office copy of Legal Notice dated 25.10.2012.

Ex.A9           Postal Receipts (Nos.3).

Ex.A10        Postal Acknowledgements (Nos.3)

Ex.A11        Letter from opposite party No.2 dated 25.09.2012.

List of exhibits marked for the opposite parties:-

Ex.B1          Booking Form per family/per tour issued by the opposite party No.3 towards advance deposited.

          Sd/-                                                                                         Sd/-

LADY MEMBER                                                                          PRESIDENT

     // Certified free copy communicated under Rule 4 (10) of the A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties    :

Copy was made ready on                   :

Copy was dispatched on                    :