DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.603/2013
Mrs. Nirmala Bommareddy,
R/o 8390, Sector-C, Pkt.-8,
Vasant Kunj, New Delhi-110070
….Complainant
Versus
Thomas Cook (India) Ltd.
through Authorised Representative,
D-15, South Extension 2,
Adjoining ICICI Bank & Tata Croma,
New Delhi-110049
….Opposite Party
Date of Institution : 16.12.2013
Date of Order : 12.05.2020
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U.K. Tyagi
1. Complainant has requested to pass an award for the sum of Rs.5,00,000/- as compensation for mental agony and physical attrition; to pay Rs.1,50,000/- alongwith interest @18 per annum from the date of booking amount i.e 07.05.2013 against M/s Thomas Cook ( India) Ltd. (hereinafter referred to as OP-1). Brief facts leading to the case are that the Complainant had booked a holiday trip known as European Delights (09 nights/10 days) for herself and her two children. As per OP’s mail dated 07.05.2013. The Complainant also gave necessary documents including original passport to OP for VISA and other travelling formalities. On 07.06.2013, the Complainant received a call from the Executive of the OP stating that VISA formalities have been completed and tour was to start on 15.06.2013 as per schedule. The Complainant made all necessary arrangements. There was no mention in the booking acknowledgement the tour is subject to availability.
2. The Complainant was intimated on 12.06.2013 by the OP that tour would start on 25.06.2013 instead of 15.06.2013. It was averred by the Complainant that the tour was programmed keeping in view the summer vacation of her children and her convenience. The copy of e-mail is exhibited as Annexure C-3.
3. In the event of failures on the part of OP to start the tour from 15.06.2013, the Complainant vide its letter dated 12.06.2013, asked for the refund of entire amount of Rs.1,50,000/-, which was paid by the Complainant to the OP at the time of booking of the tour. It was learnt by the Complainant that entire amount of Rs.1,50,000/- was not being refunded but some amount was being deducted on account of VISA fees and other formalities. The tour under reference did not materialize because of failure on the part of the OP, why the Complainant should be burdened of the expenses incidental to tour. It was further added that the tour so committed by the OP, did not commence on the schedule date, because of the act of OP, which amounts to deficiency in service. Hence, the complaint. The OP is liable to compensate for the same. It was averred that due to illegal act of OP, the Complainant suffered not only monetary loss but also mental agony and physical attrition.
4. The OP, on the other hand, made some preliminary submissions exhorting that the Complainant had failed to disclose any fact to support any allegation of deficiency of service on the part of OP. It was submitted that the entire complaint is based on impermissible conjectures, inferences and surmises. The demand of compensation to the tune of Rs.5,00,000/- for alleged inconvenience, alleged harassment, alleged mental agony and alleged deficiency in service etc. is per se untenable besides being imaginary and preposterous and in any event excessive. It was also asserted by the OP that any compensation has to be quantifying only based on well recognized legal principles and proportion of quantification of damages. The Complainant should have placed before the adjudicating authority material facts indicating that not only showing the extent of actual injury suffered but also the manner and extent to which monetary loss has been caused directly to her. The Complainant has simply put up a preposterous and fanciful figure of Rs.5,00,000/- towards compensation for mental agony and deficiency in service as averred by OP in its submissions. OP further added that this contention of Complainant lack any real or logical basis and same should not be entertained by this Hon’ble Forum. OP has placed reliance upon the judgement passed by Hon’ble National Commission in the case of Commercial Officer, Office of Telecom District Manger, Patna Vs Bihar State Warehousing Corporation reported in 1(1991) CPJ 42 . “The present complaint is therefore, not a bonafide action and is only an abuse of judicial process for making unconscionable gains.”
5. OP further maintained that except what has been categorically admitted by the OP in its reply, each and every allegation made in the said complaint be deemed to be specifically traversed and denied. The OP has also evidenced the terms & conditions containing in Brochure provided to the complainant at the time of booking and tried to establish that there was no assurance on behalf of the OP about the confirmation of tour for 15.06.2013. The confirmation of any tour date especially foreign tour depends on VISA, other formalities and availability of vacancy in the particular tour as numerous customers had made bookings from all over India. Therefore, complainant was told that confirmation of this particular tour that was to be started w.e.f 15.06.2013 was subject to availability. The Complainant was told specially about rescheduling the trip in case of non-availability of vacancy for 15.06.2013 tour as this tour had already reached optimum level. It is also asserted by the OP that the terms & conditions were read by the Complainant herself & signed the same. The above mentioned terms & conditions alongwith R-1 is exhibited at Annexure R-1. As mentioned under the heading “other Terms” and
“ In the event of the cancellation of tour, the cancellation charges as stated here shall apply and client will be liable to pay to the company such charges.”
The Complainant did not accept the alternate date i.e 26.06.2013 to commence its trip but cancel the tour altogether. OP also averred that despite cancellation charges, as per terms & conditions, as a gesture of good will, was ready to refund the booking amount of Rs. 1,50,000/- which shows bonafides on the part of OP.
6. Both the parties filed evidence in affidavit and written submissions. Rejoinder was not filed as observed in the order of this Commission dated 15.01.2015. Written Statement is also on record. Arguments were heard & concluded.
7. This Commission has gone through the material placed before us carefully. The Complainant had heavily placed reliance on the mail dated 07.05.2013 and it was further contended that after receiving the firm commitment, the booking was made for the tour commencing from the date of 15.06.2013. The OP had placed on record the terms & conditions containing in Brochure which specifically mentioned under the heading “Itinerary Changes” that
“We reserve the right to change the departure date or cancel a departure due to lack of enough nos of passengers.”
8. This Commission do also understand the importance of signing of the Brochure containing the terms & conditions and its formality of signing the agreement in a mechanical manner. But the Complainant can’t deny this fact and its binding force. The Complainant had maintained all through that on the receipt of e-mail dated 07.05.2013, she made the booking for the said tour only considering the vacation of her children. This fact has not been denied specifically by the OP either in its reply or elsewhere. The aspect of demanding the entire amount of Rs.1,50,000/- was also looked into as well as the stand for cancellation charges to be recovered as duly evidenced by the OP.
9. In view of the facts and circumstances in the matter, mentioned above, this Commission intends to go with the stand of OP as far as quantification of damages or compensation. And compensation has to be quantified on a rational basis on consideration of material produced before the adjudicating Forum not only showing the extent of actual injury suffered, if any, but also, the manner and the extent to which monetary loss has seen caused directly. In nutshell we feel that there is some degree of deficiency in service and negligence and accordingly, we direct OP to refund the entire amount of Rs.1,50,000/- alongwith interest @6% per annum, if not refunded earlier, from the date of booking till receipt of this order and Rs. 10,000/- as compensation towards mental agony/harassment etc. within 3 month from the receipt of the order, failing which interest shall be levied @9% per annum till its realization.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
