BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 06^TH DAY OF MAY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to refund the booking amount of Rs.3,26,383/- being the non refunded booking amount, together with penal interest @ 24% per annum from 10.04.2023 till the date of realization.
2. Direct the OP to pay compensation of Rs.5,00,000/- being the liquidated damages towards the mental agony and financial loss suffered by the complainant and negligence caused by OP to the complainants.
3. Direct the OP to pay the legal expenses of Rs.50,000/- towards the issuance of legal notice and filing of this complaint.
4. And to pass such other order or directions as deems fit.

2. The case set up by the complainant in brief is as under:-

The complainant impressed by the OPs brand name had booked a trip to France, Switzerland and Germany for duration of 8 days 9 nights scheduled to commence on 2^nd May 2023 for the complainant  No.1 and his family i.e., complainant No.2 and 3. The package was choosen and looked based on the brochure provided by the OP and also the website.  The OP has clearly mentioned in the website that “you can complete the visa application and our visa guides will guide you through the process, so you won’t be handling this process on your own.” 

3. The complainants in order to get the Schengen visa made necessary payments as per the agreement of the OP totally Rs.6,33,442/-.  The entire visa documentation process was handled by the OP and their team. The OP team verified all the necessary documents and proceeded with the visa application process on behalf of the complainant. As this is the first international trip of the complainants they have completely depend on the OPs due to their expertise.  The visa interview was scheduled on 06.04.2023 at the VFS office, Bangalore. The complainants received the set of documents necessary for the process from the OP in the morning of the interview.  After careful review it became apparent that the OP team had made errors in the visa application.  After the interview the complainant’s visa applications were rejected.  The Swizz embassy issued a letter on 13.04.2023 outlining the reasons for the refusal which is as follows;

• Information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable.
• There are reasonable doubts as to your intention to leave territory of the member states before the expiry of the visa.

4. Both these reasons can be attributed to the deficiency in service provided by the OPs.  The OPs had verified all the documents before proceeding with the visa application at no point during the process the OP expressed any concern or doubts about the likelihood of the visa application being approved.  
5. It is further grievance of the complainant that these term of events had been extremely distressing the complainants since they were eagerly anticipating the trip.  The emotional impact and mental agony caused by this disappointment are still being felt by the complainants who are yet to fully recover from the shock.
6. It is further grievance of the complainants that they are being charged the cancellation fee of Rs.90,000/- per person along with tax by the OPs.  The entire process of booking flight, hotels and the itinerary was handled by the OP which is totally wrong and unjust.  The OPs demanded cancellation charges of Rs.90,000/- per person on 29.04.2023. The amounts deducted exceed supposed cancellation charges clearly reflecting the ill-intention of the OPs.  This unfortunate incident has resulted a negative mark on the complainant’s passport subjecting the complainants to additional scrutiny in future travel plans. Therefore the OPs are liable to refund the full amount paid by the complainant for the trip along with compensation.  When the OPs failed to refund the amount the complainants have got issued legal notice on 15.06.2023 seeking refund of the booking amount of Rs.6,33,442/- together with interest and damages.  The OPs have partially refunded the amount of Rs.2,03,517/- out of the total amount of Rs.6,33,442/-, thereby withholding a sum of Rs.3,54,202/-.  The OPs have advised the complainant that a sum of Rs.30,163/- is collected as TCS, so far only a sum of Rs.14,285/- is credited as TCS out of the total TCS of Rs.13,163/- and a sum of Rs.15,878/- deducted as TCS remains unexplained till this date.  When the OPs have failed to refund the amount the complainants were forced to file this complaint for recovery of the amount from the OPs due to their deficiency of service.  Hence the complaint.
7. In response to the notice, OP appears and files version. The main contention taken by the OP is that the complainant and two others had booked the tour for France Switzerland and Germany on 02.05.2023 and have paid the tour amount of Rs.6,33,442/- in full which was towards confirmation of the said tour.  
8. It is further case of the OP regarding cancellation of the visa that this OP does not have any control on the decision of the embassy/consulate to approve or reject visas. The complainant attended the visa interview for the swiz visa on 06.04.2023. The date of birth of the complainant No.3 was rectified before submission and this rectification has no role to play in the event of visa rejection of the entire family.  There was no proof provided by the complainants to show that there were any other errors or that the alleged errors resulted in visa rejection.  The visas were rejected on 13.04.2023 and the OP has informed the same to the complainants. The reason for visa refusal has been clearly stated that the information submitted regarding the justification for the purpose and the conditions of the intended stay was not reliable and that there were reasonable doubts of the complainants intention to leave the country before the expiry of the visa.  There is no reason mentioned regarding any erroneous filling of application etc., and this OP cannot be held responsible for the cancellation of visa rejection.  
9. It is further allegation made by the OP regarding refund of the visa charges that the complainant is already aware of the terms and conditions regarding refund of cancellation fee.  As per the condition any cancellation of tour made within 30 days of the travel date rendered 100% cancellation.  The complainant’s case clearly false under the said situation. These OPs have contacted their vendors/travel partners in the various countries and sought for maximum refund possible and the details of the refund have already been admitted by the complainant in para 18 of the complaint, wherein they have admitted about the receival of total amount of Rs.2,79,240/-. The remaining amount paid by the complainant however cannot be refunded since it falls under the nonrefundable amount due to cancellation before 30 days of the tour.  This OP has tried their best and secured whatever refund they could get for the complainants which has been duly transferred to them. This OP is not liable to pay the remaining amount as the cancellation of the visa were not in the hands of the OP, since they do not control the decision of the embassy/consulate. Hence prayed for dismissal of the complaint.
10. The complainant has filed his affidavit evidence and relies on 15 documents.  Affidavit evidence of official of OP has been filed and OP relies on 03 documents.

11. Heard the arguments of advocate for the both the parties.    Perused the documents.

12. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

13. Our answers to the above points are as under:

Point No.1:  Affirmative in part

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

14. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence and written arguments of both the parties along with documents.

15. It is undisputed fact that the OP is a travel agent and they are running the business by name Thomas Cook. The complainants have booked a trip to France, Switzerland and Germany for 8 days and 9 nights. Scheduled to commence on 02,05.2023 for the complainant 1 and his family i.e., complainant NO. 2 and 3. The complainants have choose the package on the basis of the brochure provided by the OP and also the website of the OP. they have also paid the total amount of Rs.6,32,442/- to the OP.

16. The main grievance of the complainant is that as per the brochure provided by the OP and website that the customer has to complete the visa application and the OP guides will guide the customer through the process and the entire process will be done by the OP.  The complainants have applied for Schengen visa. The entire visa documentation process was handled by the OP and their team as agreed by them. The OP team have verified all documents and proceeded with the visa application process on behalf of the complainants.  The visa interview was fixed on 06.04.2023 at the VFS office in Bangalore. After the interview the visa was rejected by the Swiss Embassy on the ground that the information submitted by them regarding the justification for the purpose and conditions of the intended stay was not reliable and there are reasonable doubts as the complainants intention to leave the territory of the member states before the expiry of the visa.

17. After that the OP have charged cancellation fee of Rs.90,000/- per person and deducted Rs.2,70,000/- for cancellation. In addition to this the OPs have refunded an amount of Rs.2,79,240/- and refused to refund a sum of Rs.3,54,202/- stating that it is a non refundable amount.  

18. In support of their contention the complainant No.1 has filed his affidavit evidence and relied on 15 documents.  Ex.P1 is the copy of the brochure, Ex.P2 is the Copy of the claims made by the OP on their website regarding the Schengen Visa, Ex.P3 and 4 are the Welcome email, Ex.P5 to P7 are the Three copies of receipts, Ex.P8 are the copies of Visa response letters, Ex.P9 is the Email dated 29^th April 2023, Ex.P.10 is the Legal notice dated 15.06.2023, Ex.P.11 is the RPAD receipt, Ex.P.12 is the Mail dated 09.08.2023, Ex.P.13 is the Mail dated 09.08.2023, Ex.P.14 and P.15 are the Copy of the Annual tax statement.

19. On the other hand, in order to prove their contention the OP company Manager has filed his affidavit evidence and relied on three documents. Ex.R.1 is the Authorisation letter, Ex.R.2 is the Copy of the letter dated 09.08.2023.

20. The main contention taken by the OP is that they are only a facilitator for the VISA process wherein they submit the visa application form along with supporting documents to the embassy/conciliator. These OPs does not have any control on the decision of the embassy/consulate to approve or reject visas.  It is further contention taken by the OP that it is crystal and clear from the reasons given by the embassy for rejection of the visa that it is not due to any error in the visa application filed by the OPs before the consulate. The decision arrived by the embassy is on its own and the OP has no role to play. When there is no reason mentioned regarding any erroneous filing of application the OP cannot be held responsible for the visa rejection.  The OP has further admitted that they have refunded Rs.2,79,240/- and the remaining amount paid by the complainants cannot be refunded since it falls under non refundable amount due to cancellation of the tour before 30 days of the tour.  

21. It is clear from the evidence and the documents relied on by both the parties the Swiss embassy has rejected the visa application of the complainant as they are not satisfied with the information provided by the complainants for the purpose and condition of their stay and also their intention to leave the territory of the member state before the expiry of the visa.   It is also true fact that the OP has no role to play in the rejection of the visa by the Swiss Embassy and it is the supreme power of the embassy to approve or reject the visas.

22. It is pertinent to note here that the tour was cancelled due to rejection of the visa by the embassy and it is not the fault of the complainant.  If the complainant has cancelled the tour within 30 days for any other reasons the contention taken by the OP that they will not refund the amount which comes under non refundable clause.  But in this complaint the complainants were forced to cancel the tour for rejection of their visa. Under these circumstances the complainants are also in a helpless condition and they cannot lose their amount which was paid only for their trip.  The OP cannot refuse to pay the balance amount on the ground that they have paid the amount already for booking of the hotels and other itinerary reservations etc.  When the very visa is rejected to the complainants they are not liable to pay the amount which is not at all utilized by them for any purpose.  Under these circumstances the OPs are liable to refund the balance amount of Rs.3,26,383/-.  The complainants have failed to establish any deficiency of service on the part of the OP. The OP does not have any control on the decision of the embassy to approve or reject the visa. The OP can only process the visa application and submit the same to the embassy on behalf of the complainant, but the decision is left to the decision of the concerned embassy.  Under these circumstances, the complainants are not entitled for any damages or compensation. They are only entitled for refund of the booking amount with litigation cost of Rs.25,000/-.   Hence we answer point No.1 and point No.2 partly in affirmative.
23. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to refund Rs.3,26,383/- to the complainant with litigation cost of Rs.25,000/-.
3. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 8% p.a. after expiry of 60 days on Rs.3,26,383/- till final payment.
4. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 06^TH day of MAY 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;