IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 26th day of July, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 111/2015 (filed on 06-05-2015)
Petitioner : Philip Kurian,
Padinjareparambil House,
Eranjal,
Muttambalam P.O.
Kottayam.
(Adv. Anie C. Kuruvilla)
Vs.
Opposite parties : (1) Thomas Cook (India) Ltd.
GCP, First Floor,
NBS Buildings,
Manorama Junction,
Kottayam – 686001.
(2) Thomas Cook (India) Ltd.
First Floor, Palal Towers,
M.G. Road, Ravipuram,
Kochi – 16.
(For Op1 and 2, Adv. Nithin N.K.
and Adv. Nithin Sunny Alex)
Additional party (3) General Manager,
(Impleaded as per IA No. Ethihad Airways,
208/18) 1st Floor, Sundar Mahal Church Gate,
Above Iran Air Office, Mumabi
O R D E R
Smt. Bindhu R. Member
The complainant who wanted to sponsor a European trip for his son and his fiancé after their marriage which was proposed to have been on 28/9/14. It was understood that the opposite parties were arranging a European tour on 4th October 2014 and when the son of the complainant contacted the opposite parties, got a confirmation on 20.06.14.The total amount agreed for the land package was rs. 2,18,052/- and the air ticket charge was Rs.1,32,428/-.The son of the complainant and his fiancé gave their passports copies in advance to the opposite parties as per their demand. The son of the complainant was resident of Nepal for his medical studies whose passport was issued from Cochin-Kerala and his fiancée was a resident of Quatar/Doha whose passport was issued by the Indian Embassy,in Riyadh –Saudhi Arabia. These facts were evident from the copies of the passport given to the opposite parties.
Though the tour was proposed to be on 4th October,2014, the opposite parties insisted for taking the air tickets earlier and the tickets were issued by the
opposite parties on 4 th July 2014.When the complainant enquired about the early
purchase of the tickets, the opposite parties informed that it was done so for getting suitable accommodation it was necessary. As per the demand of the opposite parties the complainant paid Rs.1,32,428/- for ticket booking. The complainant was also informed by the opposite parties that their Kochi office had started Visa processing and later on 17.09.14 they informed their inability to get visa as the Switzerland embassy rejected the visa on condition that the travelling parties had to reside in India for minimum six months before applying for visa. The opposite parties had never informed about such a condition to the complainant or to his son throughout the processing of Visa. If the complainant was given prior intimation of this he would not have made arrangements or paid the amount for the tour programme. The non-intimation of such a condition precedent to the complainant by the opposite parties is a deficiency in service which caused great mental agony and financial loss to the complainant. On 19.9.2014 the complainant demanded for the refund of money and only upon repeated demands, the opposite parties gave Rs.35,383/- only on 30.10.2014. A
lawyers notice was issued on 23.12.2014 by the complainant to the first opposite
party demanding the return of rs.1,47,045/- along with interest, cost and compensation. Later the opposite parties returned Rs.11,379/- on 23.01.2015.In
spite of the lawyers notice and several communications were sent, the opposite parties have not given any reply. The opposite parties being represented as international agencies and thereby induced the complainant to enter into contracts with them, their non-response and wilful negligence is a clear deficiency in service from their side. Thus the complaint is filed for getting the balance amount of Rs.1,35,666/- along with 18% interest and 18% interest for the Rs.1,82,428/- from 7.7.2014.
The opposite parties 1 and 2 appeared upon receipt of notice and filed joint version. As per the statement of 1st and 2nd opposite parties the complainant impleaded additional opposite party 3. The opposite parties contented that the complainant is not a consumer as the son of the complainant is the actual party involved in the transaction. The complaint is bad for misjoinder of parties.
The 1st opposite party being a reputed leisure travel and tour operator globally with a good will 50 years in India always ensure the best service to their customers. The complainants son approached the opposite parties to book tickets for a European tour programme. The opposite parties informed him that for an economical package and cheaper air tickets, they would have to book well in advance and thus he consented to the same and the tickets were booked on 5.7.2014 with Ethihad airlines. The airlines issue tickets at discounted rates much before the journey with condition that the same is non-refundable. These conditions are laid down by the airline in their conditions of booking and cancellation. The opposite parties informed the complainant’s son about the pros and cons of pre booking and that granting or refusal of visa is the prerogative of the embassies of the respective nation. The complainant’s son had forwarded only the 1 st and last page of the passports to the opposite parties for the booking of the ticket. Hence the opposite parties could not trace the issue of residence as both their passports were seen issued from India.
Neither the complainant nor his son informed the opposite parties that he and his fiancé were residing at Nepal and Qatar respectively. Therefore the opposite parties could at no point of time advice regarding that.
The complainant’s son was well aware of the pros and cons of the booking of the non refundable tickets issued by Ethihad airways. Had the complainant’s son disclosed the residential status in the passports to the opposite parties well in advance, alternate arrangements could have been made. The ticket amounts of Rs.1,32,428/- should be sought for from Ethihad Airlines and the opposite parties had only booked the tickets of Ethihad airlines as per the instruction of the son of the complainant.
From the amount of Rs.50,000/-collected as advance, excluding the tax and
processing charges the opposite parties had refunded Rs.35,383/- on 21.10.2014 and Rs.11,379/- on 6.12.2014 . There is a balance of Rs.1726/- towards the travel
insurance to be paid back, which is withheld as the matter became subjudice. There is no deficiency of service on the part of the opposite parties and hence the
complaint is liable to be dismissed.
The 3rd opposite party contented that they were unnecessarily impleaded as no case has been made out for deficiency in service or unfair trade practice on their part. The complainant had booked the air tickets from the 1st and 2nd opposite parties. The complainant has stated that they had paid the ticket fare to the 1st and 2nd opposite party for a package for special rate. The 3rd opposite party has no role in it. The 1st opposite party has done similar arrangements with other airlines also where they would block large number of tickets on various sectors at a special rate and such tickets are then sold to the customers of 1st and 2nd opposite parties as a package with hotel, transport and sightseeing. The 1st and 2nd opposite parties had already paid the amounts for the tickets and if any refund is to be made that should be to them. All the payments and correspondence have been taken place between the complainant and the 1st and 2nd opposite parties. The complainant has to prove what payment has to be refunded from the 3rd opposite party. The opposite party no 3 could not be aware that the complainant’s son and his fiancé were residents of other countries.
The 3rd opposite party has not received any amount directly from the complainant or had involved in the process of visa at any point of time. It was the Op no 1 and 2 who failed to inform the complainant about the requirement of visa from the Swiss consulate. Thus if at all any wilful negligence is attributable, it is not to the 3rd opposite party but the 1st and 2nd opposite parties are liable for the same. The IATA rules are clear that all visas, documents etc. for entry to the host country is the responsibility of the passengers alone. Clause 14, conditions of IATA clearly specifies the same. Regarding the refund of money the 1st and 2nd opposite parties are answerable and the 3rd opposite party has not received any legal notice and for that also they are not liable. The 3rd opposite party has not committed any deficiency in service or unfair trade practice and is not liable to compensate the complainant and hence the 3rd opposite party shall be exonerated from the complaint.
The complainant has adduced evidence through proof affidavit along with
documents which are marked as Exhibits A1 to A13 and PW1 and PW2 were also
examined. The opposite parties 1 and 2 adduced evidence through DW1 and Dw2
and marked Exhibits B1 to B10.
Upon a detailed perusal of the pleadings and evidence on record, we would like to frame the following issues:
1. Whether the complainant is a consumer?
2. Whether the opposite parties have committed deficiency in service by not giving proper service to facilitate the journey of the complainant’s son and his fiancé?
3. If so what are the reliefs?
1. The complainant’s case is that he had sponsored two air tickets for his son and his fiancé for a Europian tour as a gift on their wedding. But after receiving the payment advance the opposite parties cancelled the tickets and the package because the Switzerland embassy had rejected their visa for the reason that both of them had not resided in India for the preceding six months which was not informed by the opposite parties to the complainant before the initiation of the tour package process.
2. The opposite parties resisted the allegations in the complaint that as it was necessary for low cost tickets to book the tickets earlier, the opposite parties booked the tickets with the consent of the complainant’s son who concealed the fact that he was in Nepal and his finance was in Qatar.
Moreover, the visa application was to be submitted by the applicant himself. The opposite parties have no role in it. So they are not liable for any deficiency. The opposite parties contended that the complainant is not a consumer as all the communications and transactions were with the son of the complainant.
Point No 1
3. The complainant had booked two air tickets for his son and his fiancé. The complainant has averred that he had sponsored the tour as per Exhibit A4 and A12 documents. A4 is the statement of account issued by State bank of Travancore of the account of the complainant showing the transfer of Rs.1,32,428/- to Thomas cook In. On 8.12.15.Exhibit A12 is the sponsorship letter given by the complainant to the consulate general of Switzerland.
Both these documents stand unchallenged. So from these two documents, we infer that the complainant was also part of the transaction and so he is a consumer of the opposite parties. Moreover, Exbt. A2(i) and A2(j) are the communication e mails between the complainant and the opposite parties which also prove that the complainant was part of the transactions.
Moreover, DW1has deposed that the payment for the tour programme has
transferred from the account of the complainant. So it is found that the complainant is a consumer who can very well file a complaint before this Commission in the shoe of the consumer.
Point No 2 and 3
4. The allegation of deficiency in service on the part of the opposite party is in not supporting the complainant’s son and his fiancé for the proper processing of visa which resulted in the cancellation of the much awaited honeymoon trip of the complainant’s son and his fiancé.
5. As per the complainant he approached the opposite parties 1 and 2 for the complete European tour programme which included ticketing, visa processing, accommodation, sightseeing and food. Regarding all these processes the complainant and his son were lay men. So they entrusted the opposite parties for the entire charting of the tour and acted according to their directions. Though the complainants were ready to take the tickets, upon the assurance of the opposite parties, they entrusted the ticketing also with the opposite parties. The complainant was under the belief that the opposite parties would do the needful for the successful visa processing.
6. The opposite parties contention is that the visa processing had to be done by the applicants themselves and if there occurred some mistakes they were not liable. The opposite parties put forward the reason that the Switzerland Embassy had rejected the visa of the complainant’s son and his fiancé for the reason that both of them were not the residents of India for the last six months. According to the complainant, he and his son were totally unaware of the significance of this clause. The opposite parties who offered visa processing also in their package, ought to have been informed them that the non residence of the parties in india will be a bar for the issuance of the visa. As per exbt A2(b),dated 23.6.14 the opposite parties demanded the complainant’s son to give the original passports 25 days prior to the tour to stamp visa. On 24.6.2014, vide A2 (c) letter the complainant’s son replied regarding the bonafide certificate and NOC from him and his fiancé. In the A2(c) letter the son of the complainant specifically mentioned that they should not reveal that he was in Nepal. Again on June 25th the opposite parties sent the visa application form and the VISA checklist vide Exhibit A2(d). In the email communication sent by the son of the complainant on 21.6.2014 it is again stated that he was in Nepal and his finance was in Qatar. But without addressing this, the opposite parties repeatedly keep demanding the documents for stamping the VISA. The copies of the passport of the two travellers were given to the opposite parties in the initial stage of the booking process.ExbtA5 and Exhibit A6 are the passport copies of Buby Philip and Taniya respectively. In A5 the place of issue is clearly written as Cochin and in A6 the place of issue is noted as Riyadh. Again in Exhibit A7, the Bonafide certificate of Buby Philip is issued by the Universal college of medical sciences that he is a post graduate resident of the college and is in the 3rd year of the course. Exhibit A5, A6 and A7 are good documents which would have been if noticed by the opposite parties, clearly explain that the travellers were out of India and were not eligible to apply for a stenchgen visa for a European trip. But due to utter carelessness and deficiency in service, the opposite parties did not notice these data and caused the complainant’s son and his fiancé commit mistake in the application form which was rejected by the Embassy of Switzerland. DW1 deposed that as per Exbt B4, it was known earlier that the son of the complainant was in Nepal and his fiancé was in Qatar.
7. The 1st and 2nd opposite parties who through their advertisements and website publish that they have the tour packages which include air ticket, Accommodation, VISA processing, Sightseeing etc. are bound to ensure the availability of the VISA . Otherwise they should have informed the travellers about their disentitlement for the VISA before accepting any advance. Here, the opposite parties undertook the visa processing as part of the package and so they are bound to supervise whether the travellers, who had paid for their service and tickets act according to the norms for obtaining Visa. Moreover, they had demanded and collected the bonafide certificate and passports for the visa processing. As per Exhibit B4 and DW1, the two said documents were necessary for the processing of Visa. Exhibit B4 is the email communication sent by the 1st opposite party to the son of the complainant demanding the submission of original passport for the visa processing. In Exhibit A2(b) sent by the OP1 to the complainant’s son, they demanded the bonafie certificate and original passports. DW1 has deposed that the opposite party 1 and 2 would have issued the receipt of Rs.13,150/- towards the visa cost. DW1 has categorically deposed that “hnk-bpsS cost R§Ä hm§n-bn«v embassy bpsS visa facilitation centre tebv¡v R§Ä AS-bv¡p-I-bmWv sN¿mdv”
DW1 also deposed that “ Land part sâ advance Bbn hm§p¶ 50,000 cq]-bn 13,150/- cq] visa processing charge Bbn receipt sImSp-¯n«pÅXm-Wv.” Thus from the above evidence on record, the 1st and 2nd opposite parties cannot escape from the responsibility of assuring visa to their consumers.
The 1st and 2nd opposite parties have evidently received money for the processing of visa and service charges while they offered services include visa processing also. So it is the bounden duty of the opposite parties 1 and 2 to monitor the submission of visa application form which was to be submitted by the applicants themselves. Here the complainant’s son and his fiancé had filled up the application form without knowing that they ought to have been residing in India for six months prior to the visa application date. The 1st and 2nd opposite parties who had assured the services, stayed inactive without rendering the most needed service to their consumers.
So we have found that there is deficiency in service on the part of the 1st and 2 nd opposite parties in this aspect.
8. Further, both the 1st and 2nd opposite parties admit that they had issued the tickets far before the VISA approval for ensuring the tickets to the travellers in a good and cheap rate. But the consumer was not informed that the same tickets were non refundable. No evidence has been produced by the opposite parties to prove that they informed the complainant or his son that the tickets were not refundable. The 1st and 2nd opposite parties were well aware that if the visa was rejected, the travellers could not be able to travel by the tickets purchased earlier and the journey would be cancelled.
The opposite parties took the non-refundable tickets knowing the fact that
the consequences of such a situation where the visa got rejected but they have not seen taken any measures to safeguard the money of their consumers, the complainant’s son and his fiancé. Dw1 deposed that Exbt A9 series air tickets do not contain a declaration that the same were non refundable.
No such document also has been filed to show that the opposite parties had intimated the complainant and his son that the tickets were non refundable.
9. The 1st and 2nd opposite parties argued that they had collected only 50,000/- as advance of the land part expenses and out of that returned Rs.35,383/- on 21.10.2014 and an amount of Rs11,379/- on 6.12. 14 and according to the opposite parties only Rs.1726 was to be paid back.
10. Here, the opposite parties while conducting their business, forgot to render good service to the customer assuring that his money is not wasted. Not only that the complainant offered such a tour to his son and finance due to his love and affection towards them and they were also planning their honeymoon in Europe. So the act of omission to give proper guidance to the travellers by the opposite parties is a severe deficiency in service which has caused both financial loss and mental agony to the complainant and his son. So the opposite parties are liable to compensate the same. Hence we allow the complaint and the following order is passed:
1. The 1st and 2nd opposite parties are directed to pay Rs.1,35,666/- to the complainant along with 9% interest from 7.7.2014 till realisation.
2. The 1st and 2nd opposite parties are directed to pay Rs.35000/- towards compensation to the complainant.
The Order shall be complied within 30 days from the date of receipt of Order, the failing which compensation will carry 9% interest.
Pronounced in the Open Commission on this the 26th day of July, 2022
Smt. Bindhu R. Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 – Philip Kurian
Pw2 – Buby Philip Kurian
Witness from the side of opposite party\
Dw1 – Santhosh K.P.
Exhibits marked from the side of complainant
A1 – E-mail communication dtd.15-07-2014 by GCP Kottayam to Baby Philip
Kurian (Objected)
A2 –E-mail communication dtd.18-06-2014 by GCP Kottayam to Baby Philip
Kurian (Objected)
A2 series – E-mail communications (
A3 – Receipt No.44362 dtd.17-07-14 from Thomas Cook for Rs.50,000/-
A4 – Copy of statement of account showing the remittance of Rs.1,32,428/-
A5 – Copy of passport in the name of Buby Philip Kurian
A6 – Copy of passport in the name of Tanya Sebi
A7 – Bonafide certificate dtd.26-06-2014 from Universal College of Medical Sciences
A8 – Receipt dtd.01-09-2014 by 2nd opposite party
A9 series – Copy of Air tickets (2 nos.)
A10 –Copy of lawyers notice dtd.23-12-14 to 1st opposite party
A11- Postal AD card
A12- Copy of letter dtd.09-09-14 from petitioner to the Consulate General of Switzerland
A13 series – Application for Schengen Visa Antrag auf erteilung eines Schengen-Visums (2 nos.)
Exhibits marked from the side of opposite party
B1 –
B2 – E-mail communication dtd.02-07-14 by complainant to GCP, Kottayam (Subject to objection)
B3 - E-mail communication dtd.02-07-14 by GCP, Kottayam to complainant
B4 - – E-mail communication dtd.24-06-14 by complainant to GCP, Kottayam (Subject to objection)
B5- IATA BSP Agent billing statement and Analysis (page 4) from opposite
party (Subject to objection)
B6-IATA BSP Agent billing statement and Analysis (page 120) from opposite
party (Subject to objection)
B7 – Attested copy of Thomas Cook (India) Ltd. payment as per BSP statement
for the period 01-07-14 to 07-07-14 (subject to objection)
B8- Copy of Deutsche Bank dtd.04-12-2020 (2 pages) (subject to objection)
B9 –E-mail dtd. 30-11-20 from Clint Dias to Ansari, Muzaffar/LT/TCIL
(subject to objection)
B10- Receipt for Rs.13,150/- from the opposite party
By Order
j/5cs Assistant Registrar
