Tamil Nadu

South Chennai

CC/97/2013

Dr.G.Ilango - Complainant(s)

Versus

Thomas Cook (India) Ltd., - Opp.Party(s)

M.A.Lakshmipathi

06 Jun 2017

ORDER

                                                                        Date of Filing :   18.03.2013

                                                                        Date of Order :   06.06.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

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

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO. 97/2013

TUESDAY THIS  6^TH   DAY OF JUNE 2017

 

Dr. G. Ilango,

S/o. R.D. Gnanasekaran,

No.24, B- Block 6^th Street,

Anna Nagar East,

Chennai 600 102.                                             .. Complainant

 

                                        ..Vs..

1.  Mr. K. Jayaraj,

Managing Director,

M/s. Scans Pareil Life Sciences (P) Ltd.,

No.47/2 SBI Staff 1^st Colony,

Behind Hotel Sri Gowrikrishna,

Bye Pass Road,

Madurai 625 010.

 

2. M/s. Thomas Cook (India) Ltd.,

Rep. by its Manager,

No.47, 1^st Floor, Spur Tank Road,

Chetpet, Chennai 600 031.

 

3. Mr. SP. Sivabalan,

Senior Manager – Leasure Travel,

M/s. Thomas Cook (India) Ltd.,

Shops – V & W No.16 & 17 1^st Floor,

KRV Arcade, AR Plaza, North Valli St.,

Madurai.                                                               .. Opposite parties.

 

 

Counsel for Complainant                   :    M/s. M.A. Lakshmipathi & others

For opposite party-1                       :     Exparte.  

Counsel for opposite parties 2 & 3      :    M/s. Karthik & others   

 

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties  under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.6,48,200/- towards tour cost with interest and also to pay a sum of Rs.5,00,000/- towards damages for mental agony and Rs.25,000/- as cost of the complaint to the complainant.

 1. The averments of the complaint in brief are as follows:

         The complainant submit that the 1^st opposite party has arranged the tour through the 3^rd opposite party and 3^rd opposite party has given a booking certificate confirming that the complainant is travelling along with his wife Mrs. Indrani for GIP  Tour of summer 2012 schedule to depart on 10^th May 2012.    The 1^st opposite party has fixed the entire tour cost for both complainant and his wife at Rs.6,48,200/-.   Further the complainant submit that he has paid the entire tour cost of Rs.6,48,200/- for himself and his wife.   After paying the entire tour amount the complainant and his wife received a call on 4^th May from his Son-in-law Saravanan Sivapadtham, employed in Wipro at Adelaide, Australia that Mrs. Yogalakshmi Saravanan, daughter of the complainant was admitted in Royal Adelaide Hospital in Australia, and on receipt of the message from son-in-law the immediately at 12.52 p.m. on 4.5.2012 contacted the 1^st opposite party  for cancellation of trip for himself and his wife and refund the maximum amount after deducting cancellation charges  and return the passport for taking new visa to Australia.   Since the opposite parties has not responded  properly, on 6.5.2012 at 9.45 a.m. went to meet the opposite party-1 as per his instruction at  Hotel Palm Grove, Chennai.  The office was vacated and opposite party-1 was not there.   Even after repeated requests and demands and emails the 1^st opposite party has not returned the passport.   The 2^nd  opposite party returned the passport only on  10.5.2012.  Hence the complainant and his wife were not able to go to Australia.     Accordingly the complainant sent lawyer’s notice to the opposite parties and the same was received by the opposite parties but have not chosen to send any reply.    As such the act of the opposite parties clearly amounts to gross deficiency in service which caused mental agony  and hardship to the complainant.  Hence the complaint is filed.

2.     Inspite of service of notice, the opposite party-1 is called absent and set exparte.

3. The brief averments in the Written Version of  the opposite parties 2 & 3   are as follows:

        The opposite parties state that the opposite parties denies all the allegations contained in the complaint except those which are specifically admitted herein and this opposite party puts the complainant to strict proof of each and every allegation.  The 2^nd and 3^rd opposite parties also  state that there is no privity of contract between the complainant and 2^nd and 3^rd opposite parties.  The 1^st opposite party has made independent representations to the claimant and also issued an independent brochure.   There was no correspondence between the complainant and the 2^nd and 3^rd opposite parties.   Admittedly the complainant has not paid any amount to these opposite parties for participation in the tour.   He has made payment only to the 1^st opposite party, as per booking form / contract entered into between the 1^st opposite party and these opposite parties.  The opposite parties further states that the tour was to commence on 10.5.2012 and was to end on 28.5.2012 for a period of 19 days covering New York, Washington, Niagara, East Coast of USA and Orlando with Bahamas Cruise.    On 4.5.2012 the complainant cancelled the participation of himself and his wife in the said tour on personal ground that his daughter was unwell in Australia.   Admittedly the complainant communicated with the 1^st opposite party alone in respect of the cancellation as well.  

4.     As per cancellation clause set out in the terms and conditions attached to the booking form, it was clearly mentioned that cancellation made within 10 days prior to departure of the tour, would entail cancellation charges of 100% of the tour cost.   This is because all services such as airline seats / hotel accommodation, ground transportation etc.  for group tours are pre-blocked well in advance.    The opposite party further state that as per the booking form, the tour cost charged by the 3^rd opposite party to the 1^st opposite party per person was only Rs.79,000/- + Rs.1,65,000/- in all a sum of approximately Rs.2,34,000/-.  This is the tour cost per person sharing a Double Room.  Hence the amounts charged by for two passengers is Rs.4,68,000/-.  These opposite parties are nothing to do with privity the  transactions between the complainant and the 1^st opposite party.    The complainant is put to strict proof of the contention that he had paid the 1^st opposite party a sum of Rs.6,48,200/-.  It is also pertinent to note that no payment was made by the complainant to the 2^nd and 3^rd opposite parties.    The 3^rd opposite party while handing over the passports to the complainant on 10.5.2012 had clearly indicated that for any refund the complainant would have to contact only the 1^st opposite party as there was no privity of contract between the complainant and the 2^nd and 3^rd opposite parties.  Hence there is no deficiency in service on the opposite parties and therefore this complaint is liable to be dismissed in limine.

5.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as his evidence and documents Ex.A1 to Ex.A22 marked.  Proof affidavit of opposite parties 2 & 3   filed and Ex.B1 to Ex.B4 marked on the side of the opposite parties 2 & 3.  

6.   The point for the consideration is:  

       

1. Whether the complainant is entitled to a sum of Rs.6,48,200/- with interest at the rate of 12% p.a. from 4.5.2012. ?

 

2. Whether the complainant is entitled to a sum of Rs.5,00,000/-

towards damages for the mental agony caused by the opposite parties committing deficiency of service with cost of Rs.25,000/- as prayed for ?

 

7.      Points  1 & 2 :

 

        Heard both sides.  Perused the records.  The opposite party-1 remained exparte.  Admittedly the complainant and his wife joined with the tour package arranged by the opposite party-1 and paid a sum of Rs.6,48,200/- as per Ex.A4 to Ex.A6.    As per the tour package the date of departure is 10.5.2012 total days of tour is 19 days.   On 4.5.2012 the complainant received a call from his son in law Saravanan Sivapadham employed in Wipro at Adelaide, Australia that complainant’s daughter Mrs. Yogalakshmi Saravanan was admitted in Royal Adelaide Hospital in Australia.   Immediately at 12.52 p.m. on 4.5.2012 the complainant contacted the 1^st opposite party  for cancellation of trip for himself and his wife and requested to refund the maximum amount after deducting cancellation charges  and return the passport for taking new visa to Australia.   Since the opposite parties has not responded  properly, on 6.5.2012 at 9.45 a.m. the complainant went to meet the opposite party-1 as per the instruction of opposite party-1  at  Hotel Palm Grove, Chennai and saw that the office was vacated and opposite party-1 was not there.   Thereafter on repeated requests and demands and emails 1^st opposite party has not returned the passport.   The 2^nd  opposite party returned the passport only on  10.5.2012.  Hence the complainant and his wife were not able to go to Australia in appropriate time to assist their own daughter  caused grave mental agony.  Hence the complainant sent lawyer’s notice dated 15.5.2012 calling upon the 1^st opposite party to return the entire amount paid by way of the trip to them,  marking copies to opposite parties 2 and 3.   The opposite parties has not sent any proper reply except requested time for sending reply.  The complainant is claiming a sum of Rs.5,00,000/- towards compensation for mental agony and a sum of Rs.6,48,200/- towards the cost of the tour for the deficiency committed.

8.     The learned counsel for the complainant contended that after the payment of entire package amounts on 4.5.2012 i.e. six days earlier to the departure, the complainant rightly cancelled the trip due to unavoidable circumstance of medical ailment to his daughter at Australia.   Hence the complainant is entitled to the package amount after due cancellation of Air tickets and accommodations deducting the cancellation charges and service charges.  But on a careful perusal of Ex.A13, the reply notice dated 21.5.2012, from the opposite party-1 it is seen that the complainant is not eligible for any refund.   Equally as per Ex.B1

Title	Name	Total
Mr. Kurusamy	Jayaraj x 31	7900x31     3100x 31
Grand Total		24,49,000    961.0

 

The complainant is not entitled to any cancellation charges.  Similarly, as per Ex.B4, the air tickets were booked with Emirate Airline under non-refundable scheme.   Further the learned counsel for the complainant contended that opposite parties 2 & 3 specifically pleaded that they have received only Rs.4,68,000/- towards the tour package of complainant and his wife from 1^st opposite party.  Hence, opposite party-1 without making any arrangements keeping a sum of Rs.1,80,000/- with him shall be returned to the complainant.    Further the contention  regarding privity  of  contract between the complainant and the 1^st opposite party,  by the   opposite  parties 1 to 3  cannot  arise because  even though  the  entire   amount  of Rs.6,48,200/- was collected by the 1^st opposite party it has been paid to 2^nd and 3^rd opposite parties and the real tour has been arranged by opposite parties 2 & 3. 

9.     The learned counsel for opposite parties 2 & 3 would contend that as per Ex.B1 the tour package has been arranged through opposite party-1.  After accepting the conditions in Ex.B1 the complainant and his wife paid a sum of Rs.6,48,200/-towards tour package to 1^st opposite party.  As per Ex.B1 conditions, no amount shall be refunded if the package is cancelled within 14 days of departure.    In this case the complainant and his wife admittedly informed the cancellation only on 4.5.2012 i.e. only six days before the departure.  Hence the complainant is not entitled to claim any amount.

10.    Further, the learned counsel for opposite parties 1 & 2 contended that on 4.5.2012 while informing cancellation of ticket and accommodation by the complainant has not submitted any record showing the unexpected ailment of his daughter.  Hence, the cancellation was not materialized immediately.  After hearing the complainant in person alone the attempt was made to cancel the tickets but the Emirate Airline tickets cannot be cancelled since the tickets are non refundable.   The complainant also has not taken any steps to prove whether the  amount paid towards tickets are refundable on cancellation, thereby opposite parties 2 & 3 has not committed any deficiency of service.   Further the learned counsel for the opposite parties 2 & 3 would contend that the pre arrangement for boarding and lodging and payment towards accommodation and arrangements cannot be refunded since accommodations were booked well in advance for 2 in 1, 3 in 1 etc for lodging.

11.    Further the learned counsel for opposite parties 2 & 3 would contend that there is no privity of contract between the complainant and the opposite parties 2 & 3.  The only contract is between opposite parties 1, 2 and 3.  The opposite party-1 has paid only Rs.4,68,000/- to opposite parties 2 & 3 towards this tour package.    The opposite parties 2 & 3 do not know anything about the payment of Rs.6,48,200/-.  Hence it is crystal clear that the opposite party-1 has kept Rs.1,80,200/- with him.  The opposite parties 2 & 3 also has not taken any steps to refund the said amount of Rs.1,80,200/- to the complainant. 

12.    Further the learned counsel for the opposite parties 2 & 3 would contend that the damage claimed is exorbitant and imaginary.   The claim of Rs.5,00,000/- towards compensation for mental agony is imaginary and baseless.   The complainant himself after knowing fully well joined the package and attempted to cancel the package against the conditions stipulated in Ex.B1 shall not cause any deficiency of service much less mental agony.  But, it is very clear that tour package is only Rs.4,68,000/- but, the amount collected is Rs.6,48,200/-.  Considering  the facts and circumstances of the case, this forum is of the considered view that the complainant is entitled to a sum of Rs.1,80,200/- along with interest at the rate of 9% p.a. from the date of complaint to till the date of this order with compensation of Rs.10,000/- towards mental agony and Rs.5000/- towards litigation charges and the points 1 & 2 are answered accordingly.

        In the result, the complaint is allowed in part.   The opposite parties 1 to 3 are jointly and severally directed to pay a sum of Rs.1,80,200/- (Rupees one lakh eighty thousand and two hundred only) along with interest at the rate of 9% p.a. from the date of complaint i.e. 18.3.2013 to till the date of this order i.e. 6.6.2017 and also to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards mental agony and also to pay Rs.5,000/- (Rupees five thousand only) as cost of the complaint to the complainant.

          The above amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which the said amounts shall carry interest at the rate of 9% p.a. till the date of payment.

            Dictated directly by the President to the Assistant, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 6^th day of  June 2017.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

Complainants” side documents:

Ex.A1-         -       - Copy of Tour itinerary.

Ex.A2-         -       - Copy of the Passport of the complainant.

Ex.A3-         -       - Copy of the passport of the complainant’s wife.

Ex.A4- 6.4.2012    - Copy of booking certificate issued by 3^rd opposite party.

Ex.A5-         -       - Copy of statement of account.

Ex.A6-         -       - Copy of Statement of account.

Ex.A7-         -       - Copy of Statement of account.

 

Ex.A8- 4.5.2012    -  Copy of cancellation letter from the complainant to the

                               1^st opposite party.

 

Ex.A9- 9.5.2012    -  Copy of letter sent to Wipro Ltd confirming the admission

                               of Mrs.Yogalakshmi Saravanan admitted to Royal Adelaide

                               Hospital.

Ex.A10- 10.5.2012         -  Copy of certificate given by the Registrar of Royal Adelaide

                               Hospital.

Ex.A11- 10.5.2012         -  Copy of requisition letter sent by Wipro to Australian

                               High Commissioner, New Delhi.

Ex.A12- 15.5.2012-  Copy of lawyer’s notice sent to 1^st opposite party.

Ex.A13- 21.5.2012 – Copy of the reply notice sent by the 1^st opposite party.

Ex.A14- 5.11.2012         - Copy of lawyer’s notice to the opposite parties.

Ex.A15-       -       - Copy of Postal ack. card of 1^st opposite party.

Ex.A16-       -       - Copy of Postal Ack. card of 2^nd opposite party.

Ex.A17-       -       - Copy of Postal ack. card of 3^rd opposite party.

Ex.A18- 5.12.2012         - Copy of lawyer notice.

Ex.A19-       -       - copy of Postal Ack. card of 1^st opposite party.

Ex.A20-      -       - Copy of Postal Ack. card of 2^nd opposite party.

Ex.A21-       -       - Copy of Postal Ack. Card of 3^rd opposite party.

Ex.A22- 25.12.2012- Copy of interim reply from 1^st opposite party.  

 

Opposite party’s side document: -   

Ex.B1- 7.2.2012    - Copy of booking form.

Ex.B2- 7.2.2012    - Copy of letter 1^st opposite party to the 3^rd opposite party

Ex.B3-         -       - Copy of Tour itinerary issued by the 3^rd opposite party

                               to 1^st opposite party.

Ex.B4-         -       - Copy of Tour Brochure issued by 1^st opposite party.

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.