FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is an application u/s12 of the C.P. Act,1986. The fact of the case in brief is that the complainant Sri Snehasish Bhaumik being a senior citizen booked a fixed group tour package of Kailash Mansarovar via Lucknow for 09 nights/10 days for the period from 30.06.2018 to 09.07.2018 from the OP for which he paid a sum of Rs.1,63,800/- by cheque to the OP. The above costs includes all expenses including Insurance, Meals and all other expenses. Though the tour was for 09 nights/ 10 days it was extended for three more days due to weather fluctuation and ended on 12.07.2018. But for that period no Insurance Cover was provided for which they were full of anxiety. On day 1 no lunch was provided by the OP though it was mentioned in the tour itinerary . On 30.06.2018 no contact person in the name of Jigmey Lama/Ravi Rawat was present in Nepalgunj. The Complainant further states the OP did not send any personnel with the travelers to coordinate with Sunny Travelers and thereafter to accompany the complainant on his onward journey though assured by the OP at the time of booking. The complainant was stuck at Nepalgunj for 4 nights from 30.06.2017 to 03.07.2018 due to heavy rainfall but no communication was made to him about the next course of action during this period. On 03.07.2018 night the Complainant was asked to be ready on 04.07.2018 morning at 5 AM for the destination of Simikot. After reaching Airport he was told by one unidentified person to wait in the lounge without any instruction. None on behalf of the OP was there to guide him for the next step. After repeated enquiry the complainant understood that the guide Mr. Lama belongs to some other company and they were seen busy with their own guests and thereafter, a person representing to be an official of ground handler Sunny Travelers came to the complainant and told him to wait further. The complainant after waiting for more than three hours without any proper communication and with great difficulty was given the boarding pass with some packed breakfast with which the complainant enter the security area. After entering into security area the complainant was asked to sit idle for hours without any information regarding the flight to Simikot and there was absolutely no cooperation whatsoever from any personnel of the OP. Only around 12 noon the complainant and other fellow travelers were offered lunch with an intent to specify the frustration that had already cropped up after waiting at the airport for around 6 hours without any information. The complainant was asked to come out from the security zone and to sit on the pavement where foods were served. After having lunch the complainant again went back to security zone without any information of flight departure. Around 4 pm when the complainant was very exhausted and frustrated and almost decided to leave because of no proper communication about the flight the complainant was told that flight to Simikot was getting ready for departure and the finally took off for Simikot around 5 pm. The complainant had to wait for more than 12 hours to board his flight to Simikot and before his departure he was asked to get in touch with one Mr. Nimai of the OP at Simikot. After reaching the Simikot airport on 04.07.2018 around 6 pm the complainant was again at a loss as there was no personnel namely Mr. Nimai of the OP or any one else. The complainant further states that the distance between the ground level of the airport and the main gate of the airport was more than hundred meters with steep climb and it was very difficult for the complainant being a senior citizen to climb up and down few times in search of personnel of the OP so that baggage can be taken to the hotel from the airport. After being assured by one Mr. Lama that the luggage would be sent directly to the Hotel, the Complainant reached the Hotel on asking the locals about the location of the Hotel since no personnel of the OP was available to escort him . After reaching there in the Hotel around 7 PM on 04.07.2018 the Complainant observed a pandemonium in getting the room. However with great difficulty the Complainant and his fellow travelers were given a six bedded room. The luggage so left in the Airport did not reach Hotel and the Complainant had to spent his night without changing his cloths and he could not take his medicine which were there in the luggage. On 05.07.2018 around 6- 30 AM to reach Hilsa from Simikot no personnel from the OP was there. With the help of some helpful tour guide the Complainant boarded the helicopter and reached Hilsa. After lunch the Complainant was asked to move to the Immigration Office . Again there was confusion of Bus and the Seat No. Even after sitting on a bus to a particular seat he was told to vacate the seat since those seats were booked for NRI travelers which is nothing but a case of discrimination. After Immigration formalities the Complainant reached Purang in the late evening. Again there was chaos for room distribution since no personnel from the OP was there. On the same night one fellow traveler got sick and started suffering from breathing problem . None was there from the OP to assist that sick travellors. The Complanant out of his generosity helped her by using his portable cylinder. After administering 2 cylinders of Oxygen the traveler however recovered. No personnel of the OP was there . No arrangement of oxygen gamow bag and oxymeter was there. The Complainant and other co travelers were very much dissatisfied with the OP and arranged their own portable oxygen cylinder at their own costs. The Complainant was not served bottled drinking water which he had to purchase from outside at an exorbitant price. On 07.07.2018 the Complainant was informed while waiting at Dirapuk that travelers aged above 60 years will not be allowed to cross Yamdwar but members of other Agency who are above 60 years were allowed to cross Yamdwar and completed the Kailash Parikrama. But the Complainant was assured Kailash Parikrama by the OP vide E mail dated 08.06.2017 while booking. After completing incomplete Kailash Parikrama on 08.7.2018 the Complainant and his co travelers both men and women were dumped in a double bedded room at Purang. No lock facility was there. Toilet was uncomfortable. On 11.07.2018 the Complainant was told by the men of the OP that on 12.07.2018 they would be shifted to Nepalgunj as per itinerary but they were shifted to Surketh. For their misleading information the complainant could not take his lunch on that day. Thereafter from Surketh Airport they were brought to Nepalgunj by a dilapidated Bus. After reaching Nepalgunj they were brought to a Hotel and were allotted 2 double bedded rooms for 8 travellers though the OP booked accommodation on the basis of double bedded occupancy and was refused to provide dinner. He was further informed that except the cost of vehicle the other costs are to be borne by the travelers for the journey from Nepalgunj to Lucknow. Since the Passport was under the custody of the OP the Complainant could not purchase SIM Card at Tibet and for that he could not keep contact with his family members leaving them in sheer anxiety. The Complainant states that the OP charged different amount of money from different co- travelers for the same tour package with assurance of same benefits and facilities to all though not provided. After returning to Kolkata the Complainant tried to have clarification from the OP regarding their unprofessional and unethical way of handling him resulting in deficiency of service but he was not at all entertained by the men and agents of the OP. He then sent E mail and thereafter sent legal notice dated 27.09.2018 and the reply of the Advocate was very evasive. The Complainant states that due to deficiency of the OP and for not providing service by the OP the Complainant not only had to spend money from his own pocket but also suffered from immense mental agony and pain due to the act of the OP. Finding no other alternative the Complainant has approached the Consumer Forum praying for justice with the prayers as mentioned in the complaint petition.
The OP has contested the case by filing WV contending inter alia that the complaint is false, frivolous, baseless and not maintainable either in law or in facts. It is denied by the OP that the tour cost included medical insurance, as alleged. It is submitted that in the travel brochure under clause No. 8 it has been mentioned clearly that travel insurance is not included in the tour cost. However it is submitted by the OP that Insurance Policy was purchased on behalf of the complainant from Bajaj Allianz General Insurance Co. Ltd. for the entire tour period i.e. 30.06.2018 to 08.07.2018. Insurance coverage for the extended period was not arranged by the OP since no request from the complainant was made. As per tour itinerary lunch was not supposed to be provided on the first day of the tour. Only dinner was supposed to be paid on the first day. It is denied by the OP that the local representatives were not available. The OP never promised to send any local representative along with travelers. It is the local service partners of the OP who handle the local situation and take care and manage the tourists on behalf of the OP. Since the weather condition is unpredictable the travelers were informed to stay in the Hotel till the weather condition is not changed during their tour at Nepalgunj. It is mentioned in the tour brochure that the said tour is not a leisure travel and it may involve many challenges and difficulties.It is submitted by the OP that due to unfavorable weather condition, there was delay in flight and all the travelers were waiting and the OP cannot be held responsible for the situation which cropped up due to the weather condition. Since there was heavy rush at the Airport and the lunch was a last minute plan no proper dining area was made available. It is further submitted that after clearance of weather the Airport Authority started scheduling the flights as per their norms, as Airline had also need to clear backlog of the previous day. When the flight of Simikot was scheduled by the Airport Authority the same was informed to all the travelers including the complainant It is submitted that at the Simikot Airport local representative met the complainant and since the Hotel is at a short walking distance from the Airport and no vehicle was available in Simikot Airport all the travelers had to walk to the Hotel. Luggage was made available to the travelers without any discomfort to them.
Regarding allotment of six bedded room it is submitted by the OP that it was informed to the complainant that after Nepalgunj all the hotels in the entire tour will be on sharing basis as mentioned in Clause 14 of the booking terms. Regarding non reaching of luggage in the hotel from the Airport due to which the complainant could not change his dress and could not take his medicine it is submitted by the OP that local service partner advised to keep the necessary items in the provided duffle bag and the rest items in the Airport only for the next day due to heavy rush. Against allegation of harassment in the Bus it is submitted that the seats in the bus were allotted on first cum first served basis without any discrimination. At Purang the local representative of the OP helped all the guests to get the room as per availability. Regarding non supply of Gamow bags and oxy meters it is stated that the same were available in the hotel where the travelers were staying. Oxy meters are not provided individually , provision for the same is made in every hotel. More over no complaint was received by the OP from the concerned traveler Smt. Sumita Bhattacharya. Regarding supply of bottled drinking water it is stated that two bottles were provided free to each traveler and extra bottle need to be purchased. Regarding entry at Yamdwar it is stated that the age barrier to cross Yamdwar is decided by China India Pilgrims Service Centre and the Chinese Authorities and it is completely their discretion where the OP had no control over the same which is mentioned in clause 13 of the booking form. Due to bad weather condition on 11.7.2018 all the morning flights got cancelled for the day at Simikot. When the airport began operating, the flights were available only till Surkhet. Keeping in mind the safety of travelers it was decided to fly from Simikot to Surkhet and then by road to Nepalgunj in order to avoid one more day stay at Simikot. It is submitted by the OP that four room were booked at Nepalgunj at the time of return. Since the extension of the tour was unexpected and beyond the control, all the bookings were in vain. Taking in mind, the comfort of travelers the OP booked two rooms without additional cost from the complainants and other travelers though the OP was entitled to charge the same as per terms and conditions. Since the OP did not charge any additional cost for the extended two period the travelers were expected to buy their own food on the last day of travel. It is also denied and disputed that due to unavailability of the passport the complainant could not buy a sim card and could not contact his family members. It is submitted that the terms and conditions and as already informed by the OP the passports were duly handed over to the all travelers at Nepalgunj. Against the allegation of the complainant for charging different amount for different travelers, it is submitted by the OP that the tour cost depends upon the booking day and the departure day. The travelers who booked tour early, get the advantage of additional discount
Points for Determination
On the pleading of both the parties, the following points have necessarily come up for determination.
1) Whether the OP is deficient in rendering proper service to the complainant.
2) Whether the OP has adopted any unfair trade practice.
3) Whether the complainant is entitled to get relief or reliefs as prayed for.
Decision with Reasons
Point Nos. 1 to 3:-
All the points are taken up together for the sake of convenience and brevity in discussion.
The complainant and the OP have filed their evidences on affidavit. They have filed replies to the questionnaire set forth by their adversaries. They have also submitted their BNAs.
We have travelled over all the documents placed on record.
Fact remain that the complainant Mr. Snehasish Bhaumik booked a fixed a group tour package of Kailash Mansrover for nine nights/ten days for the period from 30.06.2018 to 09.07.2018 from the OP. The complainant paid Rs. 1,63,800/- by cheque for the said tour package to the OP. Against the complaint of not providing medical insurance, the OP has cited the Insurance Clause No. 8 of the tour itinerary which speaks for itself. “ Insurance: Personal Travel Insurance is not included in the tour cost. it is your responsibility to ensure that, you are adequately insure for the full duration of tour, in respect of illness, injury, de ath loss of baggage and personal items and cancel and curtailment”. However, at the request of the complainant the OP company borne and paid the cost of insurance. The policy of insurance was issued by Bajaj Allianz on 30.06.2018 itself and upon receipt of same forwarded to the complainant by the OP. The policy of the extended period of 03 days was not provided as no request was made by the complainant. Moreover, that was not mandatory on the part of the OP since cost of insurance was not included in the tour costs. Regarding not providing lunch on the first day of tour it is found from the tour itinerary that only dinner was supposed to be provided by the OP after arrival to Kathmandu . Regarding non availability of personnel on behalf of the OP in Nepalgunj as alleged is denied by the OP stating that the local representatives of the OP were available all time. The Complainant however admitted that he was briefed in the evening on 30.06.2018 by the local representatives. Deputing personnel along with the travelers were never promised by the OP. No document has been filed by the Complainant. Regarding changes of schedule timing , delay of flight and related difficulties the OP has referred the Clause 7 of the tour itinerary which speaks for itself.
“ You agree and accept that this tour involves physical and mental challenges. It is not like a leisure entertainment tour package. Thus during the tour you may face many challenges and difficulties including but not limited to those associated with high altitude expeditions, flight cancellations because of weather condition, forced unplanned stay at any destination for multiply nights due to weather conditions, eratic and uneven climatic conditions and weather changes, etc.
Company reserves the right to:-
- Change the date of departure, or
- Modify any aspect of the Tour, or
- Cancel or modify any routes within the Tour or objectives set out in the itinerary, or
- Substitute different or equivalent routes within the Tour in place of cancelled or modified routes, or
- Postpone, cancel or delay, any such aspect of the Tour if , in the absolute discretion of TCIL, it is necessary to do so due to inclement weather, snow or icy conditions or conditions that are otherwise likely to be hazardous or dangerous or due to any other adverse or threatening conditions whether political or military or terrorist or otherwise or if, in the absolute discretion of the company, there is likelihood of any such event occurring which may impact upon the safety of the participants, or if an act or omission of a third party prevents the Tour or the aspect of the tour being undertaken in accordance with your booking. In the event of any change, modification, cancellation, postponement or delay under this condition, you acknowledge that you will have no right of refund of the tour price ( whether in full or part ) and no right to claim compensation for any injury, loss or damage or other additional expenses incurred by virtue of the change, modification, cancellation, postponement or delay. Company also reserves, in its absolute discretion, the right to cancel any tour due to any government travel warning or advice, or any change in such warning or advice.
- Make a final decision that is binding in case of any differences or disputes during the tour.
- Cancel a tour if a participant does not comply with all the formalities required by ‘Nepalese and Chinese authorities’ en- route.
Regarding complaint of accommodation after Nepaqlgunj Clause 14 of the booking terms and conditions speaks for itself.
“Accommodation is generally on 03 or 04 passenger sharing during this tour(except Kathmandu stay), but due to high number of travelers many times you may have to adjust 05 to 06 Passenger in a Dormitory type accommodation”
As such during the unexpected and sudden extension of tour for which no additional cost was charged to the Complainant and other co travelers the situation was not under the control of the OP.
Regarding allegation of not allowing to Cross Yamdwar for Parikrama the restriction is there under Clause 13 of the booking form which speaks for itself.
13. * Assumption of Risk
“ You accept and agree to assume all risk associated with the journeys and further agree to abide by the terms and conditions of Company as described herein and its Brochures and publications. In the event of illness, accident,weather,political and other factors beyond their control, you will not hold Company and its agents, associates or employees responsible or liable.
Note:- Above terms and conditions are also based on China India Pilgrim Service Centre (CIPSC ) and subject to change as the rules of CIPSC and Chinese Government.
More over the evidences of co travelers one Mrs. Sumita Bhattacharyya and another Mrs Papri Pal are not supported by their Complaint filed before the OP and as such the same cannot be accepted
In view of the above we are of the considered view that the Complainant has failed to establish the case in his favour.
Thus all the points under determination are disposed of
In the result, the complaint fails.
Hence,
Ordered
That the complaint case be and the same is dismissed on contest against the OP without any cost.
