Haryana

Ambala

CC/220/2018

Vasu Vashisht - Complainant(s)

Versus

Thomas Cook India Ltd - Opp.Party(s)

03 Jun 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        :  220 of 2018

                                                          Date of Institution         :  16.07.2018                                                       

                                                                  Date of decision   : 03.06.2019

 

 

1.       Vasu Vashisht, aged about 27 years, son of Sh. Bharat Bhushan Sharma;

2.       Vishakha Vashisht, aged about 26 years, wife of Sh. Vasu Vashisht, aged about 27 years, son of Sh. Bharat Bhushan Sharma, both residens of 10/140, Ajit Nagar, Ambala Cantt.

 

…. Complainants.

                                                          Vs.

 

1.       Thomas  Cook India Limited, Marathon Futurex, A-Wing, 11^th & 13^th Floor, N.M.Joshi Marg, Lower Parel (E), Mumbai-400013 through its Managing Director.

2.       Thomas Cook India Limited, Shop No.97, Behind Rai Market, Opp. Big Bazar, Ambala Cantt.

 

….…. Opposite Parties

 

Complaint Under Section 12 of the Consumer Protection Act

 

 

Coram:       Ms. Neena Sandhu, President.

Ms. Ruby Sharma, Member.

Sh. Vinod Kumar Sharma, Member.

                            

Present:       Complainant in person with Sh. S.K.Sharma, Advocate & Sh. Gaurav Sharma, Advocate, counsel for complainant.

Sh. Rohit Kapoor Advocate, counsel for OPs alongwith Sh. Sudesh Sharma, Advocate.

 

 

Order:         Smt. Neena Sandhu, President.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties(hereinafter referred to as ‘Ops’) praying for issuance of  following directions to them:-

1. To pay balance amount of Rs.60,000/- and Rs. 2,00,000/- as damages alongwith upto date interest.
2. To pay Rs. 50,000/- as litigation expenses.

 

 

The brief facts of the complaint are that as per advertisements of the OPs for tours in India and foreign countries, both the complainants contacted the OP no.2, for arranging a tour of United Kingdom for them. The office-in-charge of the OP No.2, with full consultation with the concerned officials of the Head office i.e. OP No.1 had arranged a tour, “Super Budget Europe” which was to start on 02.05.2018 from New Delhi to U.K.,for which they were to pay Rs.3,15,330/- inclusive of air fare, Visa charges, hotel(3-star) accommodation, food, taxi fare and site-seeing etc. as mentioned in the tour plan. As per the assurance of the OPs both the complainants paid Rs.30,000/- in advance on 03.03.2018, Rs.70,000/- on 07.03.2018 and Rs.7,350/- (Trip Protection Plan) on 09.03.2018 and also handed over all the documents  on 10.03.2018. The OPs after verification of the documents told the complainants that the documents handed over by them are complete and no more document is required for this tour package. The OPs after receiving all the documents and amount more than Rs.1,00,000/- when they did nothing then the complainants sent a e-mail dated 20.03.2018 to the OPs to enquire as to why they have not applied for the Visa. Only thereafter the OPs had applied for the Visa on 26.03.2018. The complainants had submitted their Income Tax Assessment documents with OPs to show that the annual income of the complainants No.1 & 2 was Rs.6,30,796/- and Rs.2,52,000/- respectively as per Income Tax Returns for the year 2017-18. However, in the documents applied for Visa, the OP No.2 had shown income of the complainant no.1 only as Rs.2,52,200/- and had not shown any income of the complainant no.2  and this is one of the reasons that the Visa was refused by the Immigration Office of U.K. The complainants could not get the Visa due to the negligence of the OPs.  As per the rules of the OPs company, if a consumer purchases a Trip Protection Plan of Rs.7,350/- and in case, the Visa applied for by the consumer is refused before three weeks from the date of the tour, the OPs company will be liable to refund the entire amount received from the consumer. Complainants had paid Rs.7,350/- on 09.03.2018 and as such the OPs had to apply for Visa on 10.03.2018 but they had applied the Visa on 26.03.2018. The complainants made the full payment of Rs.3,15,720/- upto 27.03.2018. Since, due to the negligence of the Ops, the complainants could not get the Visa for U.K., therefore, they were liable to refund the entire amount paid by them but they refunded Rs. 2,54,889/-only. Thereafter, the complainants also sent so many e-mails to the OPs but they did not reply the same. The complainants also made a complaint to Ministry of Consumer Affairs, Food & Public Distribution Department (Govt.of India) New Delhi vide complaint no.753473 dated 29.05.2018. The Ministry of Consumers Affairs sent a complaint through mail to the OPs on 29.05.2018. Complainants also sent a copy of the complaint to the OPs through mail but they did not reply the same.  Thereafter, the officials of the Ministry of Consumers Affairs advised the complainants to send a written complaint to the Ops through speed  post  which they has sent on 07.06.2018 but the Ops did not give any proper reply/ response to  the same. Due to non-payment of the balance amount by the OPs, the complainants have suffered a lot of mental agony and physical harassment. The said act of the Ops amounts to deficiency in rendering services. Hence, the present complaint.

2.               Upon notice OPs, appeared through counsel and filed written version raising preliminary objections qua complaint is not maintainable being false and frivolous; not come with clean hands; no jurisdiction and non-joinder of necessary party. On merits, it is stated that the complainants have made false averments in the complaint that they contacted the Ambala Branch of TCIL, for the booking of the tour and the office in charge of the said branch, in consultation with officials of OP No.1 arranged the tour. The correct factual position is that the complainants booked the tour in question online through the website of TCIL and all the services were booked, contracted and monitored from Mumbai. Subsequently, the complainants interacted with Mr. Jashan Giri, the company official at the Chandigarh branch of TCIL, for the assistance regarding VISA. From the documents placed on record, it is clear that the complainants have never booked or availed any services from the Ambala Branch. It is further stated that the complainants, on their own, visited the website of TCIL, wherein various kinds of services are offered, including pre-arranged tour packages, which are subject to the terms and conditions. The complainants keeping in mind their budget, preferences and requirement, voluntarily booked a group package tour for Europe, after understanding and accepting the governing terms and conditions as published on the website of TCIL. It is specifically mentioned in the Terms & Conditions that “All the clients travelling on a Thomas Cook Holiday tour must be in possession of a valid Visa. Client shall ensure that the Visa Application Form  is duly filled in and verified by the Client, to his or her satisfaction, before it is submitted to the Embassy/Consulate. 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 be held responsible  for the same. The company is not at all liable for such cases or has any influence on the consulate/ embassy’s decision. The role of the company is only to provide necessary guidance to the clients for the purpose of applying for VISA.  They further stated that complainants after initially booking the tour “Europe for all” which scheduled to depart on 25^th April, 2018 booked the tour marketed as “Super Budget Europe”. The complainants requested for a change in the departure date to 2^nd May, 2018 instead of 25^th April, 2018 for their convenience, which was accepted and they were shifted to the tour departing on 2^nd May, without any extra charges. A welcome email dated 7^th March, 2018 was sent to the complainants highlighting some of the features and conditions, besides drawing the attention of the complainants to the detailed terms and conditions on the website of TCIL. It was inter alia mentioned that a trip protection plan is available at an additional cost, which is subject to its governing terms and conditions. The complainants vide email dated 09.03.2018 opted for the trip protection plan and were assisted in making the payment for the same through online. Complainants have wrongly alleged that all the required documents for Visa were submitted on 10.03.2018. Mr. Jashan Giri representative of TCIL-Chandigarh branch sent a email dated 11.03.2018 regarding the list of documents required for apply for Visa and asked to submit the documents before 13.3.2018. As per the process of the TCIL, after verification of the documents, the Visa Application Form  was filled up based upon the documents submitted by the complainants. Once the application Form  was filled up, the same was sent to the complainants vide email dated 20.03.2018 for their confirmation. The changes suggested by complainants were duly incorporated and the modified application Form s was again shared with complainant vide email dated 22.03.2018 for re-confirmation. The complainants were duly reminded for timely submission of their documents and filling up of their Visa Form. TCIL, verified Form s. The complainants had personally verified all the details of Visa Application Form and upon their confirmation. TCIL had submitted the application to the Embassy of U.K. on 26.03.2018. As such there was no delay in submitting the Visa Application Form to the Embassy. The income details were correctly mentioned in the Visa Application Form as per the documents submitted by the complainants. The contents of the application were got twice confirmed from the complainants and after getting confirmation from the complainants, the said application alongwith the documents provided by the complainants, were submitted to Embassy. It is pertinent to mention here that previously complainant’s Visa for USA was rejected on 01.06.2012 and again on 31.07.2015. Further application for Canadian Visa was rejected on 16.02.2018. The said disclosure was made in the U.K. Visa Application being mandatory and may be one of the factors for the rejection of the Visa by the U.K. Authorities. They further stated that if the tour got cancelled due to Visa rejection and the tour cancellation is within 10 days of departure of tour, under the Trip Protection Plan, amount is payable after deduction of 15% of the total amount as cancellation charges. Accordingly, after deducting 15% out of the total amount of Rs.3,15,720/, an amount of Rs.2,54,889/- had already been refunded to the complainants. Thus, there is no deficiency on their parts of the Ops and prayed for dismissal of the present complaint with heavy costs.

3.               To prove his version complainant tendered affidavit Annexure CW-1/A alongwith documents as Annexure C-1 to C-23 and closed the evidence. On the other hand, Counsel for the OPs tendered affidavit Annexure OP/A alongwith documents Annexure OP-1/1 to OP-1/7 and closed the evidence on behalf of the OPs.

4.                We have heard the learned counsels for the parties and carefully gone through the case file and the case law given by the learned counsel for the parties.

5.                 At the outset, the learned counsel for the OPs has raised the objections that the present complaint is liable to be dismissed for want of territorial jurisdiction because the complainants had never availed the services of OP No.2 and have impleaded it in the arrays of opposite parties, just to attrack the territorial jurisdiction of this Hon’ble this Forum. The complainant booked the tour in question online and subsequently interacted with Mr.Jashan Giri at Chandigarh Branch of TCIL. To this effect, the learned counsel for the complainants has argued that after consulting the official of OP No.2 and on his advice the complainants  booked the tour online through web-site and also paid amount at Ambala only, as such  part of cause of action arose at Ambala. Thus, as per Section 11 of the Act, this Hon’ble Forum has territorial jurisdiction to adjudicate the matter involved in this case. From the receipt dated 14.03.2018, Annexure C-5, it is apparent that complainant no.1 is the resident of Ambala and had paid Rs. 89,700/- to the Thomas Cook India Ltd. Mumabi i.e. OP No.1 through online. In the case of Spice Jet Ltd Vs. Ranju Aery, IV 2017 CPJ 1 (NC), the Hon’ble National Commission has held that  buying of travel tickets on internet, acceptance of contract was received by the complainant through internet at this place of business/ residence, State Commission at Chandigarh had territorial jurisdiction, as part of cause of action arose at Chandigarh. The Hon’ble State Commission, Punjab in the case Rajinder Pasricha Vs. Garwal Mandal and Others decided on 13.04.2014 has held that since the complainant has got booked two ACs rooms at Haridwar online through credit card, at Ludhiana, certainly part of  cause of action has arisen at Ludhiana and the District Forum, Ludhiana has territorial jurisdiction to adjudicate the matter. Since, the complainants have booked the tour and paid the amount to the OP No.1, through online from Ambala, therefore, in view of the law laid down by the Hon’ble superior fora in the cases referred to above, we hold that the District Forum, Ambala has territorial jurisdiction to adjudicate the matter involved in the present case.

On merits, the learned counsel for the complainants has argued that complainants had hired the services of the OPs to go to U.K. The OPs never supplied nor apprised the complainants about the terms of the user agreement. The complainants alongwith the Visa Application had submitted their Income Tax Returns with the OPs. As per the Income Tax Returns, the income of the complainant no.1 was Rs.6,30,796/- and complainant no.2 was Rs. 2,52,000/- for the year 2017-18. However, the OP No.2 had shown the income of the complainant no.1 only of Rs.2,52,000/- and no income of the complainant no.2 in the documents applied for Visa. The complainants could not get the Visa due to negligence of the OPs. The OPs instead of refunding the total amount of Rs.3,15,720/- paid by complainants had refunded Rs.2,54,889/- only. By not paying the balance amount of Rs.60,000/- have committed  deficiency in service.

On the contrary, the learned counsel for the OPs has argued that the Ops have annexed all the documents provided by the complainants alongwith Visa Application Form. It is the prerogative of the concerned Officer of the Embassy to grant or not to grant the Visa. As per the user agreement, after rejection of the Visa, the OPs after deducting 15%  from the amount paid by the complainants as cancellation charges, had  refunded Rs. 2,54,889/- to the complainants. As such there is no deficiency in service on their part.

6.                From the record it is borne out that the Visa processing was done by the OPs. The Ops were well aware of the fact that the complainants do not have Visa to travel to U.K. and the date of tour package had already been declared by them. It is totally an illegal act of the OPs to collect the booking amount for a tour programme where no Visa was granted to the person concerned. Furthermore there was nothing on record to show that the complainants were ever apprised of the terms of user agreement or at any point of time their signatures were obtained on such document. There is nothing on record to show that the complainants were ever intimated about the non-refund policy. Moreover, how can the confirmed tickets be issued where there is no clarity whether the persons concerned would be successful in getting the Visa or not.  Taking all these facts and circumstances into consideration, we are of the view that the complainants are entitled to get the refund of the remaining amount of Rs.60,000/- and also entitled to get the litigation expenses. It may be stated here that the complainants have failed to establish that anything has been done by the OP No.2, in this case, therefore, no cognizance can be taken against it and the complaint filed against it is liable to be dismissed. Since the complainants had paid the amount of Rs. 3,15,720/- for the said package tour to the OP No.1 and it had already refunded Rs.2,54,889/-,

for by the complainants. The Op No.1 is also liable to compensate the complainants for inconvenience caused to them alongwith litigation expenses. 

7.                In view of the aforesaid discussion, we hereby dismiss the present complaint against the OP No.2 and allow the same against the OP No.1. The OP No.1 is directed in the following manner:

1. To pay the balance amount of Rs.60,000/- alongwith interest @ 7% per annum from the date on which the OP No.1 had refunded the amount of Rs.2,54,889/- till its realization.
2. To pay Rs.5,000/- as compensation.
3. To pay Rs. 3,000/- as litigation expenses.

 

The Op No.1 is further directed to comply with the aforesaid directions within the period of 30 days from the date of receipt of the certified copy of this order failing which the awarded amount shall carry interest @ 9% per annum thereafter. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :03.06.2019.

 

 

 

 

(Vinod Kumar Sharma)             (Ruby Sharma)           (Neena Sandhu)

              Member                           Member                               President