Complaint Filed: 30.10.2009<br /> Disposed On: 10.08.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 10TH AUGUST 2010<br /> <br /> PRESENT:- SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.2544/2009<br /> <br /> <br /> COMPLAINANT <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Veerappa Devaru,<br /> S/o Sri. Gangappa,<br /> Aged about 60 years, <br /> R/at No.102, Sukhasadana,<br /> 5th Cross, C.T. Bed,<br /> (Chennamanakere Angala)<br /> Banashankari 2nd Stage,<br /> Bangalore – 560 007.<br /> <br /> Advocate: Sri B.K. Nagaraja <br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. The Senior General Manager,<br /> Cox & Kings (India) Limited,<br /> Turner Morrison Building,<br /> 16 Bank Street, Fort,<br /> Mumbai – 400 023.<br /> <br /> 2. Linus Nathan,<br /> Cox & Kings (India) Limited,<br /> No.22, BMH Complex,<br /> K.H. Road, <br /> Bangalore – 400 022.<br /> <br /> <br /> 3. Toolika Naidu, <br /> Cox & Kings (India) Limited,<br /> No.22, BMH Complex,<br /> K.H. Road, <br /> Bangalore -560 022.<br /> <br /> 4. L.O., Ajai Abraham Fenn,<br /> Cox & Kings (India) Limited,<br /> No.22, BMH Complex,<br /> K.H. Road, <br /> Bangalore – 560 022.<br /> <br /> Advocate for OPs-1 to 4 <br /> Sri C.M. Poonacha<br /> <br /> 5. Sri. Suresh,<br /> Branch Manager,<br /> Cox and Kings (India) Limited,<br /> No.22, BMH, Complex,<br /> K.H. Road,<br /> Bangalore – 560 022. <br /> <br /> O R D E R S<br /> <br /> SRI. B.S.REDDY, PRESIDENT<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986, by the complainant seeking direction against Opposite Parties (herein after called as O.Ps) to pay sum of Rs.69,000/- being the amount due in respect of the ticket booked and damages of Rs.20,000/- on the allegations of deficiency in service on the part of the OP. <br /> <br /> 2. The case of the complainant is to be stated in brief is that: <br /> <br /> The complainant and his wife decided to attend the convocation function of their daughter to be held on 21.05.2009 at America. The complainant approached the 3rd and 5th OPs who are the employees of OP-1 traveling agent conducting International tours to book tickets to America and the complainant was informed a special scheme namely 50% cash back offer and there is also a lottery and in case if the complainant’s name comes in the lottery, he along with his wife and son can go for tour to America free of cost. OP-3 and 5 induced the complainant to book three tickets to America including a ticket for his son, though the complainant informed that his son is already in America. Inspite of that OP-4 and 5 induced that if he book three tickets he will be able to go on tour at a very less rate as he can avail an offer of their company and they will refund 50%. The complainant was informed costs of Rs.5,54,838/- for three tickets and he paid the same to OP. The complainant and his wife went to Chennai and got the visa. After returning from Chennai the complainant informed OP regarding obtaining the visa; he was informed by OP-4 and 5 that he will be paid 50% of amount collected on tickets under the cash back offer and asked to come in the 1st or 2nd week of April. When the complainant approached the OP in the 2nd week of April, he was informed that the ticket cannot be issued for tour in America to his son, as he is already staying in America and further informed him that they will issue the tickets only to the complainant and his wife. The complainant and his wife are new to America; they were unable to go on tour without their son accompanying them. Demanded OP to return the amount paid by them. On 20.04.2009 when the complainant came to the office of OPs, he was informed the complainant to come on 24.04.2009 as his accounts has been settled by head office and paid sum of Rs.4,85,838/- by way of cheque and assured that the remaining amount of Rs.69,000/- will be paid after consulting with the head office. Thereafter when the complainant approached OPs for refund of Rs.69,000/-, OP evasively replied that amount have been adjusted towards expenses for cancellation of ticket and service charges. The complainant booked tickets from another agency and attended the convocation function and was subjected to grave mental tension as he hurriedly booked tickets from another agency. The complainant also lodged complaint to the jurisdictional police against the OPs. OPs have illegally retained a sum of Rs.69,000/- payable to the complainant for no fault of him and further OPs have not rendered any service though they have collected the service charges. The complainant got issued legal notice to the OPs, OPs-2 and 4 have sent reply to the notice. It is alleged that there is clear deficiency of service on the part of the OPs in not returning the amount paid. Hence the complaint is seeking necessary reliefs stated above. <br /> <br /> 3. On appearance, OP-1 filed the version contending that this Forum has no jurisdiction to entertain the complaint, as the Forum chosen by the parties is District Consumer Disputes Redressal Forum Mumbai. OP-1 is a company incorporated under the provisions of Companies Act, 1956 having its registered office at Mumbai. The parties by the contract conferred exclusive jurisdiction upon the Courts and Forums at Mumbai. There is no deficiency of service on the part of the OP. On 25.01.2009 the complainant had booked for a package tour “America Bonanza” under Duniya Dekho – Escorted Group Tours, of 15 days / 14 nights with 50% cash back offer for himself, his wife and son for departure scheduled on 19th of June – 09. The complainant has signed the booking form; the cash back offer booklet, and the terms and conditions where under he had agreed for the terms and conditions of the said package tour. The complainant by his letter dated 21.04.2009 cancelled the booking and requested to refund the amount due. The total cost of the tour was Rs.5,32,797/-. After deducting Rs.1,37,998/- towards 50% cash back on basic, the total amount payable was Rs.3,94,799/-. In all the total cost after cash back, amounted to Rs.5,54,838/-. The complainant paid Rs.3,000/- per person, in all Rs.9,000/- towards non refundable deposit as unsecured reservation amount, which was paid at the time of booking. The complainant was made aware of the fact that Rs.3,000/- per person paid towards the unsecured reservation amounts and a sum of Rs.20,000/- per person to be paid as non refundable deposit in lieu of their booking would stand forfeited in the event of cancellation of the tour. The complainant upon reading the said terms and understanding the same signed the booking form and terms and conditions. The complainant made further payment of Rs.1,12,500/- on 02.02.2009 and paid the balance amount of Rs.4,33,338/- on 14.02.2009 in all sum of Rs.5,54,838/-. After the complainant cancelled the tour a sum of Rs.4,85,838/- was refunded through cheque dated 24.04.2009 towards settlement of his account. An amount of Rs.60,000/- (Rs.20,000/- per person) was deducted as cancellation charges and Rs.9,000/- (Rs.3,000/- per person) paid towards unsecured reservation amount being the non refundable deposit. A total sum of Rs.69,000/- was forfeited as cancellation charges and forfeiture for the three passengers. The complainant in the said letter dated 24.04.2009 acknowledged the receipt of the said cheque and has confirmed that the said amount full and final settlement of his account. The complainant after realizing the amounts refunded approached the Ashok Nagar Police Station and lodged a false and frivolous complaint against the OP. The legal notice issued was replied by OP. It is denied that OP induced the complainant to book three tickets to America, though informed that his son is already in America, but tour cost was determined after giving 50% cash back offer on the basic fare. The complainant paid sum of Rs.5,54,838/- towards the total tour cost. OPs assisted the complainant in visa documentation and in getting the appointment with the US consulate. The complainant has filed false and frivolous complaint. Hence it is prayed to dismiss the complaint with costs. <br /> <br /> 4. OP-2 to 4 filed memo adopting version filed by OP-1. OP -5 inspite of service of notice failed to appear and the learned counsel for the OP submitted OP-5 is no more in service of OP-1.<br /> <br /> 5. In order to substantiate the complaint averments, the complainant filed affidavit evidence. The Deputy General Manager Accounts of OP-1 filed affidavit evidence in support of the defence version and produced documents. <br /> <br /> 6. Both parties filed written arguments. Arguments heard. Points for our consideration are: <br /> <br /> Point No.1:- Whether the complainant proved the <br /> deficiency in service on the part of <br /> the OPs?<br /> <br /> Point No.2:- Whether the complainant is entitled<br /> for the reliefs now claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> 7. We have gone through the pleadings of the parties, documentary and affidavit evidence, noted the points of arguments. We record our findings on the above points are:<br /> <br /> <br /> <br /> Point No.1:- Negative. <br /> Point No.2:- Negative. <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 8. At the out set it is not in dispute that on 25.01.2009 the complainant booked three tickets through OP-1 travel agent to America one for himself another, for his wife and one more for his son who is already in America under a special scheme namely 50% cash back offer, by paying an amount of Rs.9,000/- by cash. The total cost of three tickets was Rs.5,54,838/-. After making initial payment of Rs.9,000/- on 25.01.2009, the balance amount was paid through cheques dated 04.02.2009 and 14.02.2009. Tour departure schedule was on 19.06.2009. <br /> <br /> The complainant claims that after obtaining the visa he was informed by OP-4 and 5 that he will be paid 50% of the amount collected on tickets under the cash back offer and asked him to come in the first or second week of April. Accordingly when he approached the OP in second week of April, he was informed that the tickets cannot be issued for tour in America, to his son as he is already staying in America and further informed him that they will issue the tickets only for himself and his wife. The complainant felt that without they being accompanied by their son, they being new to America, were unable to go on tour all by themselves, issued the letter dated 21.04.2009 demanding OP to refund the entire amount paid and to cancel the tour. An amount of Rs.4,85,838/- was refunded through cheque dated 24.04.2009 drawn on IDBI bank. Now the complainant claims the balance amount of Rs.69,000/- for refund of the same as OP has not rendered any service, on the other hand OP induced for a wrong scheme which the complainant was not intended to opt for the same. <br /> <br /> 9. The defence of the OP is; as per the terms and conditions of the package tour contained in the booking form, an amount of Rs.3,000/- per ticket in all Rs.9,000/- towards three tickets paid as reservation fee and an amount of Rs.20,000/- per ticket in all Rs.60,000/- for three tickets, paid as non-refundable deposit in lieu their booking would stand forfeited in the event of cancellation of the tour, the total amount of Rs.69,000/- was deducted and the balance amount of Rs.4,85,838/- was refunded through cheque, the complainant received the said amount as full and final settlement of his account on 24.04.2009. Therefore it is contended that there is no any deficiency in service on the part of the OP. The complainant is not entitled for any of the reliefs claimed. <br /> <br /> 10. OP produced the original letter dated 24.04.2009 marked as Annexure – D in support of the defence that the complainant has received the cheque for Rs.4,85,838/- dated 24.04.2009 towards full and final settlement of his account. After pursuing the said letter it becomes clear that the complainant has put his signature acknowledging the receipt of the said cheque in full and final settlement of his account. Further he has also stated that he has no grievance claim or demand against OP. The learned counsel for the complainant contended that the complainant has not put his signature for the said letter, the same is forged document. The xerox copy of that letter was shown during the course of arguments wherein the signature of the complainant was not there, only the signature of Senior General Manager was put for the said copy of the letter. The learned counsel for the OPs submitted, the copy of the letter was furnished to the complainant to go through the contents of the letter, at that point of time the complainant has not signed the said letter. After going through the contents of the letter; the complainant has put his signature, thus it is contended that there is no truth in the allegation that the signature of the complainant is forged on the said letter. In our view in the version filed OP has clearly pleaded that the complainant has received the cheque towards refund in full and final settlement and has issued the letter on 24.04.2009. The copy of that letter was also produced. In the affidavit evidence filed by the complainant, no where he has stated that the signature found on the said letter is not that of his signature and the same is a forged one. Therefore we are unable to accept the contention that the signature of the complainant is forged on the letter wherein the cheque was received towards full and final settlement of the accounts. <br /> <br /> 11. The complainant while booking the three tickets has put his signature to the booking form containing the terms and conditions. Annexure B-1 is copy of the booking form; in the said form it is shown that reservation fee Rs.3,000/-, booking amount Rs.20,000/-. The complainant has agreed for the terms and conditions that reservation fee and booking amount being non-refundable interest free deposit shall be forfeited in the event of cancellation of the tour. Annexure B-2 the copy of the terms and conditions duly signed by the complainant provides cancellation and forfeiture clause. OP-1 on the basis of the terms and conditions contained in the booking form forfeited an amount of Rs.9,000/- paid towards reservation fee of three tickets, Rs.60,000/- paid towards booking amount of three tickets, in all Rs.69,000/- which was paid as non-refundable interest free deposit which shall be forfeited in the event of cancellation of the tour. It cannot be said that complainant without knowing the terms and conditions has put his signature to the booking form. We are unable to accept the contention of the complainant that OPs-3 and 5 to induced to book three tickets, inspite of informing that the son of the complainant is already staying at America. Under these circumstances OP is justified in deducting total amount of Rs.69,000/-. The balance amount is already refunded, as admitted by the complainant. In view of the same there is no any deficiency in service on the part of the OPs. <br /> <br /> 12. The complainant has booked the tickets at Bangalore by paying the amount and entire transaction had taken place at Bangalore only, therefore there is no merit in the contention of OP that this Forum has no territorial jurisdiction to entertain the complaint, as per the terms and conditions signed the parties conferred exclusive jurisdiction upon Courts and Forums at Mumbai. No cause of action has arisen within the jurisdiction of Forums at Mumbai; merely because the registered office of OP is situated at Mumbai, it cannot be said that this Forum has no jurisdiction. In II (1998) CPJ 77 Sipani Automobiles Ltd., & Another V/s Tej Bahadur Jain & Others Delhi State Consumer Disputes Redressal Commission held that no part of the cause of action arose within the jurisdiction of the Courts at Bangalore. The jurisdiction of Courts at other places could not, therefore, be ousted by making a provision in the contract. “In the said case the advance amount was paid at Delhi, and the terms and conditions printed on the reverse side of the booking form condition No.7 provided in case of any dispute the same will be sub-judicated to the jurisdiction of the Courts at Bangalore.” The principles laid down in said case are aptly applicable to the facts of this case.<br /> <br /> OP-1 is the Senior General Manager representing the registered office of OP; as such there is no merit in the contention that the complaint is bad in law as the same has been filed without making the registered office of the OP at Mumbai as a party to the proceedings. <br /> <br /> 13. The complainant failed to prove deficiency in service on the part of the OPs, in view of the same the complaint is devoid of merits, the same is liable to be dismissed. Accordingly we proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is dismissed. Considering the nature of dispute no order as to costs. <br /> <br /> Send the copy of this order to both the parties free of cost.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 10th day of August 2010.) <br /> <br /> <br /> PRESIDENT<br /> <br /> MEMBER MEMBER <br /> <br /> Snm:<br /> <br /> <br />