BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 16^th March 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                 : HON’BLE MEMBER

ORDERS IN

C.C.No.233/2014

(Admitted on 25.06.2014)

Mr. P. Raghuchandra Shetty,

S/o P.L. Shetty,

Chartered Accountant,

Aged about 51 years,

Kunil Complex,

Kankanady,

Mangalore  575 002.

                                                      ….. COMPLAINANT

(Advocate for the Complainant: Sri MR)

VERSUS

Thomas Cook India Ltd.,

A1/B1, Ram Bhavan Complex,

Kodialbail, Mangalore 575 003,

Represented by its

Manager/Authorised Signatory.

                                                          …..........OPPOSITE PARTY

(Advocate for the Opposite Party: Sri GP)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI VISHWESHWARA BHAT D:

     The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

     The complainant claims in December 2011 he with his wife and son planned for 23 days tour of America Grandeur with Canadian Extravaganza, by approaching opposite party on 16.12.2011 with 2 dates to be specified in April/May 2012 and of the declared cost of Rs.9,00,300/ paid a sum of Rs.1,50,000/ as advance to opposite party.   However, even though visa of complainant and his son received well in time but of his wife was received on 18.4.2012.  When complainant was furnished with the dates as fixed by opposite party due to prior engagement of himself and his family opposite party fixed the tour programme most inconvenient to complainant.  As such he had cancelled the out fixed with opposite party and sought refund of the advance of Rs.1,50,000/ as which however was refused by way of false reply.  The complainant had to book tour and complete the intended tour from another agency by paying additional sum of Rs.3,00,000/ 

II.     Opposite party filed written version admitting the tour program and advance paid by complainant.  Complainant himself signed the terms and conditions on going through the tour brochure condition confirmed departure on 15^th April 2012.   In respect of the visa was granted to complainant and his son in time, in respect of complainants wife it was informed verbally that the passport will be sent shortly between 15^th and 20^th March complainant checked with US VFS as to passport and it was informed that it will be sent shortly and the same was communicated by complainant with opposite party verbally.  On 22^nd March 2012 complainant got a questionnaire from the US consulate asking for additional details about his wifes job profile and her intention to travel.  On 23^rd March 2012 formality completed after consulting opposite party’s visa team the form was filed by opposite party’s staff and given to complainant to forward the same.   It is only then opposite party came to know that the complainant has gone specifically for Administrative Processing which was not informed to opposite party.   It is only opposite party waited for some time the passport did not come in time cancelled the booking in the system and the same was kept as date undecided.  It is on 20^th April 2012 opposite party received complainant wifes passport with US visa stamped.  Tour organization was a group tour and not individual customized package.  As such the cancellation charge as per terms and conditions mentioned on booking form is applicable.  On 27^th April 2012 opposite party made other options available for the month of May date 15.20.  Opposite party has no control on issue of visa.   The complainant was required to reschedule the dates of their travel which was not arranged as suggested by opposite party.   As per terms and conditions the complainant is liable for 100% charges.  As such contending that they are not entitled either for refund of advance or for interest as claimed or any other relief.  Hence seeks dismissal of the complaint.

2.     In support of the above complainant Mr. P. Raghuchandra Shetty filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C2 as detailed in the annexure here below.   On behalf of the opposite party Mr. Rohith Patali (RW1) Senior Manager Leisure Travel (Out Bound), also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R11 as detailed in the annexure here below. 

III.    In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

     The learned counsels for both sides not filed notes of arguments.   We have considered entire case filed on record including evidence tendered by parties.   Our findings on the points are as under follows:

                        Point No.   (i): Affirmative

                        Point No.  (ii): Partly Affirmative

                        Point No. (iii): As per the final order

REASONS

IV.   POINTS No. (i):   The complainant booked for the tour of America Grandeur with Canadian Extravaganza and tour was arranged by opposite party and payment of advance of Rs.1,50,000/ is undisputed and thereby relationship of consumer and service provider between the parties but dispute towards the cancelling and seeking refund of the advance paid.  Hence there is live dispute between the parties as contemplated under section 2 (1) (e) of the C P Act.  Hence we answer Point No.1 in the affirmative.

POINTS No. (ii):  The tour arranged by opposite party in respect of which complainant booked for the same for himself and his family of son and wife by paying an advance of Rs.1,50,000/- is undisputed.   As seen from Ex.R2 the Thomas Cook Holidays Booking Form it shows the date of booking as 16.12.11 the date of departure mentioned the departure date as April 15^th.   In fact Ex.R2 in respect of tour code/date: April 15^th /TCUSC is mentioned.   Hence the claim of complainant not mentioning the date cannot be accepted.  That there is delay in obtaining the visa in respect of complainant’s wife for the journey beyond 15^th April 2012 is also not in dispute between the parties.  Opposite party has stated that it is not the authority to issue of visa and that has to be attend by the American Consulate and delay caused at that end of seeking clarification is not disputed by complainant. 

2.     As seen from the copies of the email correspondence between complainant and opposite party that they have repeatedly offered alternative travel times to complainant in view of the delay to obtain the visa in time of the complainant wife.  Ex.R9 is copy of the email pointed out dated April 29, 2012 at 11:17 am.   It is mentioned in this email by complainant to opposite party mentioning that the dates of tour is not suitable to them due to prior engagement for attending respective colleges on 1^st June 2012 without fail.   At Ex.R9 itself information to complainant on 27^th April 2012 on behalf of opposite party at 11:47:35 hrs offering to rearrange dates for travelling.  On 19^th May 2012 which however complaint of that was not accepted by complainant.

3.     As we can make out from the claim made by complainant that he had not opted for a tour programme to the schedule from 15^th April 2012 this is not true in view of mentioning at Ex.R2 at April 15^th  date which we have already referred.

4.    As to the cancellation and refund of amount under these circumstances as complainant himself opted for the cancellation of the tour as to the tour suggested is not accepted.  Opposite party in the defense Ex.R2 makes mention of any such conditions of the cancellation the relevant portion reads thus from version copy:

All services such as airlines seats/Hotel accommodation/ground transpiration etc. for group tours are pre booked well in advance.  We are still liable to pay to all our suppliers/Vendors the agreed charges including penalties.  If these services are released/cancelled within the below mentioned time frame.

     If circumstances make you cancel the Tour the cancellation must be intimated to us in writing.  All cancellation will attach the following cancellation charges:

The Company reserves the right to cancel any tour prior to the departure without assigning any reason.  In such an event, all monies paid by you will fully refunded forthwith in Indian Rupees currency only, but no compensation will be payable.  In case of cruises 10% of the cruise cost paid will be forfeited in case of any cancellation, irrespective of time of cancellation. The company reserves the right to forfeit the booking deposit in case of any cancellation.  However, passengers whose visas are not granted by the consulates must intimate us at least 45 days in advance of the date of the commencement/departure of the tour, at which time the Company will deduct INR 5,000/ per person towards guidance charges over and above any other actual expenses, if an incurred and refund the balance amount. However if such intimation is received after the said period of 45 days prior to the date of commencement/departure of the tour, the cancellation charges will be applicable as per the cancellation rules mentioned above All the clients travelling on a Thomas Cook Holiday tour must be in possession of a valid visa.  However kindly note that it is entirely at the discretion of the concerned Consulate/Authorities to grant/reject visa even after submitting all relevant documents and the Company will not held responsible for the same.  The company is not at all liable for such cases or has any influence on the consulate/embassys decision.  The role of the Company is only to provide necessary guidance to the client for the purpose of applying VISA.  The company will not be responsible for non-issuance of the visa due to receipt of incomplete/delayed documents from the clients.  It is a possibility that the consulate may ask the passengers to appear for a personal interviews.  This is at the sole discretion to the Consulate/Authorities.  If the required documents are not submitted by the client, the issuance of visa will further be delayed/rejected, and the client will not Thomas Cook liable for the same.  Client should adhere to all the norms and conditions laid by the Consulate/Embassy.  Upon rejection of visa, if the client wishes to reapply for the visa, he/she is liable to pay again the requisite fee to the Consulate and he/she will not claim from Thomas Cook.

5.     Learned counsel for complainant to substantiate his argument referred to an order in Thomas Cook India Ltd. vs. Sh. R.K. Jain & Ors in First Appeal No. 614/2011 decision dated 12.7.2013.   However unlike in the present case in the reported there was delay in applying for the visa to the complainant and son for the travel for the journey.  This resulted in rescheduling of the tour and even reschedule tour was not adhered by opposite party leading to humiliation to complainant and all their plans were shattered and they missed important destination of the trip.  It was under such circumstances in this reported judgment it is held that the charges collected by opposite party which is admittedly tour organizer.   One of the ground urged for arranging visa as per charges were collected and the responsibility was taken.  In the present case also opposite party had taken stand the responsibility to obtain visa the delay caused in receiving visa cannot be attributed to opposite party but it was due to American Consulate.  In the reported case it was held that when once the tour organiser accepts the responsibility cannot escape from liability to pay compensation for the delay caused.  Even in the case on hand as seen from the version of opposite party, it is opposite party which had done all the paper work and then by responsibility to obtain visa to the complainants’ family members.  It is not the case of opposite party the delay was caused by complainant in answering to the question of American Consulate in issuing visa.

6.     Thus in view of this reported judgment we are of the view that inability of complainant to be the party of the tour programme of 15^th April 2012 due to fault of opposite party to secure and to communicate well in time though the booking for the same was made as early as 16.12.2011.  Opposite party had offered time for arrange the tour on dates not convenient to complainant.   As such we are of the view that we are of the opinion opposite party cannot escape liability of refunding the advance paid by complainant as visa which was to be worked by opposite party was not issued to complainants wife in time for undertaking the tour due to commence on 15th April 2012 even though advance was paid on 16.12.2011.  Hence the claim of opposite party that the amount of Rs.1,50,000/ cannot be refunded is unjustified.  

7.     Refund of Rs. 1,50,000/ with interest at 9% from the date 16.12.2011 i.e. from the date of receipt till the date of payment to the complainant shall be ordered.  

8.    In respect of the alleged loss suffered by complainant from undertaking the tour through another organization there are no documents produced to show complainant and his family under took such a tour through another operator this cannot be granted. 

9.     As to the compensation is concerned on this count considering the nature of the case awarding a compensation of Rs.10,000/ including cost towards mental agony and inconvenience is just and proper.   Advocate fee fixed at Rs.5,000/

 POINTS No. (iii):   Wherefore the following

ORDER

     The complaint is partly allowed with cost.   Opposite party is directed to refund a sum of Rs.1,50,000/- (Rupees One lakh Fifty thousand only) to the complainant with the interest at the rate of 9% per annum from the date 16.12.2011 i.e. from the date of receipt till the date of payment to the  complainant. 

2.    Opposite party shall also pay Rs.10,000/ (Rupees Ten thousand only) as compensation to the complainant.

3.    Advocate fee fixed at Rs.5,000/ (Rupees Five thousand only).

4.  The above amount shall be paid within 30 days from the date of receipt of copy of this order.            

     Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

      (Page No.1 to 11 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 16^th March 2017)

               MEMBER                                                 PRESIDENT

      (T.C. RAJASHEKAR)                           (VISHWESHWARA BHAT D)

  D.K. District Consumer Forum                  D.K. District Consumer Forum

  Additional Bench, Mangalore.                    Additional Bench, Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. P. Raghuchandra Shetty

Documents marked on behalf of the Complainant:

Ex.C1: Office copy of notice dated 05.06.2012 issued by the Complainant to opposite party

Ex.C2: Letter dated 27.06.2012 issued by the opposite party to the  complainant

Witnesses examined on behalf of the Opposite Parties:

RW1  Mr. Rohith Patali (RW1) Senior Manager Leisure Travel (Out Bound)

Documents marked on behalf of the Opposite Parties:

Ex.R1: 14.12.2011: Printout email sent to complainant

Ex.R2: 16.12.2011: Booking form signed by the complainant             

Ex.R3: 11.01.2012: Printout of email sent to the complainant               

Ex.R4: 22.03.2012: Printout of email sent to the complainant             

Ex.R5: 23.03.2012: Printout of email sent to the complainant                  

Ex.R6: 08.04.2012: Printout of email sent by the complainant                   

Ex.R7: 25.04.2012: Printout of email sent by the complainant 

Ex.R8: 27.04.2012: Printout of email sent to the complainant 

Ex.R9: 29.04.2012: Printout of email sent by the complainant 

Ex.R10: 27.06.2012: Printout of email sent to the complainant                

Ex.R11: Air Tickets

Dated: 16.3.2017                                          PRESIDENT