This is complainant’s appeal against the order dated 15.09.2010 passed by the learned District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) whereby the OPs/respondents were directed to refund the amount of Rs.6748/-.

2.                              The facts, in brief, are that the marriage of complainants was solemnized on 31.08.2008. The brother of the complainant No.1 approached OP-3 for arranging the honeymoon package for the complainants. It was stated that on the assurances of OP-3, the brother of the complainant booked a package namely “Swiss Delight Group Tour” of six nights and seven days on 09.09.2008 and deposited a gift voucher worth Rs.53,000/- with OPs as advance payment towards booking of the said package.  The brother of the complainant No.1 provided all the documents i.e. marriage card, marriage photographs, bank statement, partnership deed of M/s Sunder Emporium, NOC of both the parents etc. as desired by OPs.  It was alleged that the OPs assured for getting the visa for said honeymoon trip to the complainants but to their utter shock the visa application was rejected by the Swiss Embassy on the ground of incomplete documents as mentioned in para 7 of the complaint. It was averred that due to rejection of the visa application, they had to postpone their honeymoon for next three months which spoiled all the charm and excitement of such an important occasion.  It was alleged that their application was rejected due to negligence and deficiency of the OPs in submitting the application alongwith the required documents. It was further stated that when the, complainants approached the OPs for refund of Rs.53,000/- , the OPs instead of refunding the said amount further demanded Rs.40,000/- each (total Rs.80,000/-) as cancellation charges for Hotel Booking in Switzerland. Ultimately the complainants served a legal notice dated 19.12.2008 but to no avail. Hence this complaint.

3.                              In their written reply the OPs admitted that the brother of the complainant No.1 who was having two Holiday Gift Vouchers approached OP-3 for booking of “Swiss Delight Group Tour” of Six Nights Seven days for the complainants and OP-3 duly explained the terms and conditions of the said tour. The said terms and conditions were also printed overleaf of the booking form. The brother of the complainant was also told that for undertaking the said tour, both the complainants should have a valid visa for entry in Switzerland. It was further stated that OP-1 offered to assist the complainants and provide service for submitting the application for visa. However, the complainants were told in clear terms that OPs have no control over the officials of the embassy and they will not be responsible in case the visa is rejected. It was pleaded that the complainants were told that in case of rejection of visa by U.K./Swiss/Schengen/USA, cancellation charges would be applicable as per terms and conditions, if intimation regarding rejection was received less than 45 days from the start of the tour.  It was admitted that on 09.09.2008, OPs had  filled the booking form for the said tour and the complainants deposited the gift vouchers worth Rs.53,000/- towards part payment of the total cost of the tour. However, it was denied that marriage certificate issued by Registrar of Marriages was not required. Rather they requested the brother of the complainant to complete the set of documents and to provide the certificate of marriage issued by the Registrar of Marriages for obtaining the Swiss Visa, upon which the brother of the complainant expressed his inability to give the said certificate. It was denied that OPs had given any assurance regarding the grant of visa which was the sovereign function of the country concerned. The complainants were reminded to take complete set of documents in the interview which was scheduled to be fixed on 18.09.2008 but they did not do so.  The visa was rejected due to fault of the complainants themselves who did not obtain the marriage certificate. It was pleaded that though the cancellation charges as per the terms and conditions of the booking form were accepted by the complainants but still in order to avoid litigation, the OPs has reduced the charges to Rs.23116/- per person aggregating to Rs.46,232/-. Thus, the OPs deducted the said amount of Rs.46,232/- from the amount of Rs.53,000/- and offered to pay the remaining amount i.e. Rs.6748/- which the complainants refused to accept and filed the false and frivolous complaint. All other allegations of the complaint were denied.

4.                            Parties led evidence in support of their case. 

5.                              After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum directed the OPs to refund Rs.6748/-, as stated in the opening para of this order

6.                            Feeling aggrieved, the instant appeal has been filed by the appellants/complainants.

7.                            We have heard the ld. Counsel for the parties and have perused the record.

8.                              The contention of the learned Counsel for the appellants/complainants is that they were never told by the OPs/respondents, if a marriage certificate would be necessary for obtaining Visa, that it was the responsibility of the OPs to obtain necessary documents to facilitate the grant of Visa and they were deficient in this respect, due to which the Visa was refused by the Embassy. This contention has been opposed by the learned Counsel for the OPs/respondents.  According to them, it is the discretion of the Swiss Embassy to grant or refuse the Visa and in the present case the Visa was refused due to incomplete documents submitted by the complainant. Their contention is that they had told the appellants/complainants that marriage certificate would be necessary and in this respect they have produced Annexure R-9, which is the document check list for requirement of Visas.  Their contention is that there was no deficiency in service on their part,  therefore, the impugned order passed by the learned District Forum is perfectly legal and valid.

9.                              The first question that arises in this case is whether marriage certificate was necessary to be produced and if so, whether the Visa has been declined due to this reason.  The document check list Annexure R-9 shows that for newly married couples traveling to Switzerland, the original marriage certificate legalized by Home Department is a necessary document.  When notice was served on the OPs they sent a reply Annexure R-6, in which it was mentioned that the complainant submitted a marriage certificate issued by Gurudwara instead of original marriage certificate issued by the Government authorities duly stamped by ministry of external affairs. The OPs filed reply to the complaint,  in para 4 of which it was denied, if they ever told the brother of the complainants that marriage certificate issued by the Registrar of Marriages was not required.  It was further mentioned that the OPs requested the brother of complainant No.1 for the complete set of documents that had to be appended with the application of the complainants for obtaining the Swiss Visa including marriage certificate issued by the Registrar of Marriages and endorsed by the State Home Department and Ministry of External Affairs. Again in para No.5 it was made clear that the complainants were to carry a marriage certificate with them along with the complete set of documents and as per para No.7 the complainants did not pay any heed to their advice to obtain the marriage certificate. The OPs/respondents therefore, very well knew that in order to obtain Swiss Visa it was necessary for them to obtain from the complainants and attach the marriage certificate alongwith the Visa application.  It was mentioned in Annexure R-6 in reply to the notice that as per Swiss Embassy all financial documents were in order except the marriage certificate which the complainants were supposed to carry with them when they went for interview.  Again in para 8 of the reply it was mentioned that the complainant did not give proper documents to the Swiss Embassy (due to which the Visa was declined).   The replies submitted by the OPs therefore, make it clear that marriage certificate was a necessary document for obtaining Swiss Visa and admittedly the same was not attached with the Visa application, due to which the Visa was declined.

10.                       It is an admitted case of the parties that the complainants were going to Switzerland on honeymoon trip. Their Visa was refused vide Annexure P-2 on the following three grounds:-

i)                   Purpose of the travel indicated in the application form is doubtful

ii)                 There is no obvious reason that justifies the necessity of traveling to Switzerland.

iii)              Incomplete and insufficient documents to support the visa application.

          The above reasons point out clearly towards the marriage certificate which could prove the purpose of travel (i.e. to celebrate Honeymoon) and the justification for traveling to Switzerland for a honeymoon and its absence amounted to incomplete and insufficient documents to support the Visa application.  As referred to above the OPs/respondents has also admitted that it was a necessary document and the Visa therefore, was not granted due to the absence of marriage certificate.

11.                         The next question would be as to whether the complainants were ever asked by the OPs to procure a marriage certificate and to attach the same with the Visa application. The contention of the complainants is that OP No.3 gave full assurance that Thomas Cook has a remarkable specialization in granting tour packages specially honeymoon tours for European countries. When the brother of the complainant asked if registered marriage certificate was a requirement, the OP No.3 stated that they did not need the same as the name of their company was enough for Embassy people to grant the Visa.  In their reply, the OPs in para 4 have mentioned that their representative delivered the brochure & booking form to the complainant No.1. They nowhere say if the document check list (Annexure R-9) was ever delivered to the complainant. There is no document to suggest if any such information was ever given to the complainant that the marriage certificate would be necessary. As regard to the contention of the OPs that they informed the brother of the complainant to procure the marriage certificate but he showed his inability to do so due to paucity of time, which fact has been denied by the complainant, there is no letter written by the OPs in this respect.  Since a marriage certificate was a necessary document, if the same was not being provided, the OPs should not have forwarded the Visa application to the Embassy and should not have put the complainants in a financial disadvantageous position to spend money on the application, which was not likely to succeed.  The OPs could write to the complainant No.1 or his brother in this respect that they would not be forwarding the Visa application till marriage certificate was given to them.  The OPs could in the alternative ask the complainants to obtain the Visa themselves and get out of this controversy, but they did not do so. They rather forwarded incomplete application to the Embassy and did not insist for attaching the marriage certificate with the same.  They never informed the complainant to take the marriage certificate alongwith them when they went for the interview.  All these grounds have now been coined by the OPs to digest the amount obtained from the complainants.  It was therefore, sheer negligence on the part of the OPs which amounts to deficiency in service that they sent incomplete application and did not obtain complete documents from the complainants before, forwarding his application for Visa to the Embassy. 

12.                         The learned Counsel for the OPs/respondents argued that they were acting only like a Post Office and were not supposed to check the documents. This conduct of the OPs is highly deprecated.  There is no dispute about it and the OPs have rather admitted in para 5 of the reply to the notice that “tour price were inclusive of Visa , all the formalities and procedures to facilitate Visa were completed by OPs”.  In para 3 of the reply before the learned District Forum also they admitted that “OP No.1 facilitates its clients by assisting them in applying for the Visa.”  If they do not advise their clients regarding the proper documents to be submitted along with the Visa application and they forward incomplete application to the Embassy with insufficient documents, it is entirely a deficiency in service on their part in guiding their clients to obtain Visa. Granting or refusing Visa is no doubt the discretion of the Swiss Embassy but completion of the application for obtaining Visa is the responsibility of the OPs, where they defaulted.  It was therefore, entirely deficiency on the part of the OPs, that the complainants could not get Visa for their Swiss tour.

13.                         The learned counsel for the OPs has also argued that as per terms and conditions agreed to by the complainants; they are liable to pay cancellation charges. He has referred to the terms and conditions printed on the back of Annexure P-1.  We have gone through the document but find that the terms and conditions are in a fine print which cannot be read without a magnifying glass.  Even otherwise these terms and conditions are not signed by the complainants and they would not be bound by the same.  Furthermore in the present case the complainants are not asking for the cancellation of their tour journey. In fact they have to abandon the programme due to the deficiency on the part of the OPs who did not submit complete Visa application to the Embassy for the grant of Visa. Since there is no fault on the part of the complainants they cannot be doubly punished firstly refusing the tour and secondly forfeiting the amount on the excuse of the cancellation charges.  The complainants would be therefore, entitled to the refund of whole amount deposited by them with the OPs.

14.                         The learned Counsel for the complainants has argued that the complainants were to proceed on honeymoon but in view of the failure to get Visa their entire tour was frustrated due to which they suffered mental agony and harassment.  It is contended that the complainants are very prominent business family and celebration of honeymoon is most awaited event of their life time and cancellation of the tour spoiled all charm and excitement of such an important occasion.  It allegedly lowered their status in the society.  We are of the opinion that due to the deficiency in service on the part of the OPs the entire honeymoon trip of the complainants was frustrated which caused mental agony and harassment to the complainants. We are therefore of the opinion that the OPs should pay to the complainants Rs.30,000/- as compensation for this lapse.

15.                         In view of the above discussion we are of the opinion that the complaint was liable to succeed but was wrongly disposed of by the learned District Forum.  We therefore, allow the appeal with costs,  the complaint is accordingly allowed and the OPs are directed to refund the gift vouchers of Rs. 53,000/-, which were received by them for this tour and also pay  the complainants Rs.30,000/- as compensation along with Rs.5,000/- as costs of litigation.  If any part of the order is not complied within 30 days from the date of receipt of copy of the same, the OPs would be liable to pay the amount of Rs.88,000/- alongiwth penal interest @9% p.a. since filing of the complaint i.e. 1.4.2009 till the amount is actually paid to the complainant.

                        Copies of this order be sent to the parties free of charge.