PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Opposite Party is International Tour Operator, with group headquarters based abroad & has various websites on the internet. Opposite Party had published booklet of their tour known as Hallmarks of Europe. By seeing very attractive brouchure, the Complainant on 20/05/04 booked 2 seats for aforesaid tour known as Hallmark of Europe w.e.f.12/07/04 being 22 days International tour covering 8 European countries i.e. Austria, Italy, France, Germany, Switzerland, Belgium, Holland, United Kingdom and Bonus country Dubai. The Opposite Party confirmed 2 Airlines seats one for Complainant and second for his wife with Emirates Airlines dtd.05/07/04.
2) According to the Complainant, the Hallmark Europe Tour was for 22 days and while in Switzerland the Opposite Party had arranged Hot Air Balloon Ride, however, the ride turned out to be Nightmare when the Complainant was seriously & badly injured and had fractured his leg & knee when the Hyflier Balloon Strayed due to sudden change in weather and the half hour was terrifying and horrifying as basket of Hot Air Balloon carrying the Complainant and other tour members crashed with nearby building and a hole was created inside the Balloon’s basket and one Co-tourist Indian woman had tragic end. The Complainant was immediately hospitalized due to the fracture in leg and injury in the knee, and could not complete his tour of 22 days and on termination of his tour he was repatriated to Indian hospital in Mumbai for further treatment as per his desire. In the said accident one of the senior co-group member, old lady passenger due to the air turbulence the balloons baskets after dashing and sudden jerk and impact with building had fallen down through whole in the basket and died on the spot. Due to the aforesaid incident, the Complainant and other co-passenger were shocked. For about ½ hour, the Complainant and his wife were found to be struggling between life and death. Unbearable pain due to the fracture in leg and injured knee, the horror and acute pain after the accident caused loss of sleep and made the Complainant restless. The Complainant lost appetite and suffered severe headache, stomach upset, high stress disorder, trauma, mental agony and pain which cannot be measured in terms of money. The Complainant was not aware of the hazards of the Hot Air Balloons of the adventure trip. Opposite Party should have informed its customers about hazards in Hot Air Balloons.
3) The Opposite Party has been duly served with legal notice by the Complainant’s advocate on 02/07/05, however, Opposite Party failed to reply the notice. There was no response from the Opposite Party to settle the matter. Therefore, the Complainant was constrained to file this complaint. After the date of accident, Opposite Party provided the first aid to the Complainant at the Luzerne Hospital in Switzerland and refunded balance part of tour amount of Rs.58,579/- to the Complainant vide their letter dtd.19/04/05. However, Opposite Party has failed to provide any compensation for the Complainant’s serious fracture of leg and knee injury.
4) It is contention of the Complainant that Opposite Party has violated the basic Consumer Rights with regarding safety of consumer and failed to give caution notice regarding hazards and dangers of Hot Air Balloon to the Complainant would have used the discretion/option whether to use ride Hot Air Balloon. In the brouchure also there was no caution notice regarding balloon ride. The Museum has been flying Hot Balloon rides since years but the safety measures and guards were not enough for Indian passengers. It is confirmed that the Museum has contractual relationship with Opposite Party. The Museum Pilot of Hyflier Balloon was informed by FAX of BAD weather by the ground centre. The pilot ignored various warnings and risked life of Indian passengers has been proved in the BUREAU Report and vicarious liability of MUSEUM and Opposite Party has been confirmed by the Swiss Lawyers of Opposite Party. Opposite Party is vicariously liable for the accident. Opposite Party has not taken any legal action against Museum. Negligence of Museum has been confirmed by their owners of Hyflier of Ride Balloon. Therefore, the Opposite Party has also vicariously liable for the said accident. Opposite Party has refunded the amount of unutilized tour period but they have not paid any compensation for pain and agony suffered by the Complainant.
5) According to the Complainant there are following deficiency in service of Opposite Party.
1) Opposite Party is a well known tour operator and is supposed to be well aware of the hazards and dangers in Hot Air Balloon Adventures but failed to alert/inform and caution passengers about the dangers and hazards involved in the Hot Air Balloon Adventure.
2) Providing defective Insurance Policy “Without Accident Death Cover.”
3) Lac of initiative by the Opposite Party is not taking legal action against Swiss Authorities.
6) Due to the accident the Complainant could visit only 4 countries out of 9 countries. Air balloon accident took place on the 12th day and the Complainant was constrained to return to Mumbai.
7) After the accident the Complainant was treated in KANTONSSPITAL LUZERN, Switzerland and the Switzerland Hospital issued medical certificate dtd.26/07/04. After the above hospital diagnose the Complainant as under i) Fracture of the right leg, ii) Posttraumatic stress disorder, iii) Contusion of the left knee, iv) Hyper tension. The Complainant was returned to India for further treatment. After arrival at Mumbai the Complainant admitted at Paras Nursing Home at Kandivali where she received treatment on 31/07/04 and discharged from Paras Nursing Home and completed recovery certificate was given on 29/11/04.
8) In complaint para no.14, the Complainant has given details of expenses incurred by him for the said tours. Total cost is shown is Rs.1,92,658/- from that amount the Complainant deducting amount of Rs.58,779/- refund received from the Opposite Party. The Complainant has prayed to direct Opposite Parties to pay to the Complainant an amount of Rs.1,34,000/- towards cost of tour. The Complainant has also claimed compensation towards vicarious liability from the Opposite Party of Rs.8,75,000/-, Rs.10,00,000/- towards damages for deficiency in service. Total claim of the Complainant is of Rs.19,99,999/-.
9) It is submitted that this complaint is filed within prescribed period of limitation under Sec.24(A) of the Consumer Protection Act, 1986. There was few days delay of (55) days for which the Complainant filed an application for condonation of delay. The Hon’ble State Commission condoned the delay and directed the Complainant to pay Rs.2,000/- as cost. It is submitted that claim of the Complainant against Opposite Party is actually more than 20 Lacs. However, the State Commission by oral order dtd.30/08/07 forwarded the complaint to the District Forum for further processing.
10) Alongwith complaint, the Complainant has also produced affidavit in support of the complaint. Copy of booklet published by Opposite Party is styled as “Thomas Cook European Holiday 2004”, Brouchure published by Opposite Party of their ‘Hallmarks of Europe’ tour, copies of air ticket, copy of notice sent to the Opposite Party through G.R. Bellani & Co., Advocates, High Court. News regarding Hot Air Balloon Accidents downloaded on internet, copies of the News published in the news papers regarding the incident, medical certificate issued by Kontonsspital Luzerne, discharge summary of Paras Nursing Home, copies of the letters of Opposite Party, etc.
11) Opposite Party has filed written statement and thereby resisted claim of the Complainant contending that complaint is misconceived, vexatious and malafide and therefore deserves to be dismissed with cost. It is contented that there is no cause of action against Opposite Party and the Complainant has suppressed material facts from this Forum therefore, complaint is liable to be dismissed. It is pointed out that present complaint is nothing but duplication and repetition of the Complaint No.275/2007 filed by the Complainant’s husband before this Forum. The facts and circumstances of allegations have been repudiated in verbatim. It is not made clear whether the present complainant is suffered alleged fracture or her husband suffered fracture. It is alleged that only with sole intention to extract money from the Opposite Party, as the Complainant has suppressed material fact and tried to make out a case, by making frivolous and baseless allegations, so present complaint deserves to be dismissed with cost.
12) It is submitted by the Opposite Party that initially the Complainant had filed this complaint before the Hon’ble State Commission. The Hon’ble State Commission had condoned the delay with cost on 07/06/07 and thereafter the matter was adjourned for arguments on the admission. On 23/08/07, the complaint was heard for admission and the Hon’ble State Commission passed an order wherein it is observed that “Complaint is returned to the Complainant and Complainant is permitted to file the complaint within 4 weeks from today with the Appropriate Forum.” As per order of Hon’ble State Commission, the Complainant should have filed this complaint by 23/09/07. However, the Complainant has filed complaint in the month of October, 2007. Hence, there is delay in filing of complaint and there is no non-compliance of order of the Hon’ble State Commission. The Complainant has deliberately withheld this information from this Forum. The Opposite Party has reproduced order dtd.23/08/07 passed by the Hon’ble State Commission in their written statement on page no.5.
13) According to the Opposite Party, present complaint is a gross abuse of the process of law in addition to being contrary to the very reasons for the purpose of which, ‘The Consumer Protection Act, 1986’ has been enacted. The Hon’ble State Commission in its order dtd.23/08/07 has observed that “taking into consideration the facts of the case, it prima facie appears to us that the Complainant has unnecessarily enhanced the quantum of claim and has filed complaint before the State Commission instead before the District Consumer Forum.”
14) According to the Opposite Party, the balloon ride was being organized by the State Museum and the relation between Opposite Party and the State Museum is that of an “employer – Independent Contractor” only. Even in eyes of law this Opposite Party cannot be held liable for the tort committed by the independent contractor. The Complainant has wrongly alleged that the Opposite Party is vicariously liable for the act of the Swiss Museum. It is submitted that the terms and conditions site by the Opposite Party clearly state that they shall not be held liable for the wrong committed by the independent contract and this terms and conditions have been signed by the Complainant. Hence, this complainant is liable to be dismissed with cost.
15) It is submitted by the Opposite Party that the accident was occurred beyond human control and therefore the question of negligence or deficiency of service cannot be attributed to the Opposite Party as it was an “Act of God”. While selecting the Swiss Museum for Hiflyer Balloon ride they had exercised all due and reasonable care. The balloon operator, who was an independent contractor, has no prior history of accident. Opposite Party has no control over its independent contractor. Opposite Party was not aware about any weather warnings as alleged by the Complainant. The complaint is also bad for non-joinder of necessary parties, therefore, complaint is liable for dismiss.
16) It is submitted that there is no deficiency in service on the part of Opposite Party. The Complainant has alleged following deficiency in service that i) No caution and information provided to the Complainant. ii) Defective Insurance and iii) Lac of initiative. According to the Opposite Party the Complainant has made false and misleading statement regarding deficiency in service. In the brouchure the Opposite Party has explained passengers that the nature of the adventure and the heights the balloon shall go to. The brouchure of this Opposite Party has the list of its itinerary which clearly states that the ride of the Hyflier Balloon is subject to weather condition and that it shall be taken to about a height of 120 meters from the ground level. This itself suffices the fact that Opposite Party had well informed the Complainant about the adventure that shall be part of if she so desires. Even assuming whilst denying that the Opposite Party did not explain the adventure to the Complainant but verbally it is clear from the brouchure that any prudent person shall understood the list involved when the balloon shall fly at such a great height as mentioned in the brouchure and further that the same was subject to the weather condition. The word used in the brouchure balloon ride has an adventure which means a risky venture.
17) The Opposite Party has denied allegations of lack of initiative. The Opposite Party had given necessary information regarding lodging of claim it had arranged for a lawyer and requested the Complainant to submit documents and trust the Swiss proceedings and that all her grievance shall be redressed. However, the Complainant has not willfully cooperated with the Opposite Party.
18) According to the Opposite Party, the complaint is barred by law. There is no cause of action to the complaint. Opposite Party has denied each and every allegation made in the complaint and submitted that complaint is liable to be dismissed with cost.
19) Alongwith written statement the Opposite Party has produced copies of number of documents at page no.18 to 40.
20) The Complainant has filed rejoinder and thereby denied allegations made in the written statement. It is contended that there is no delay in filing complaint. Certificate copy of order dtd.23/08/07 passed by the Hon’ble State Commission was received on 06/09/07 and the complaint was filed before this Forum on 05/10/07 which is within 4 weeks from the date of receipt of order. The Complainant has denied further allegations made in the written statement.
21) The Complainant had filed affidavit of evidence and produced number of copies of the documents alongwith affidavit of evidence. The Complainant had filed written argument. Opposite Party has also filed written argument so the complaint was closed for order. Opposite Party has submitted copy of judgement of order dtd.12/04/05 passed by The Third Additional Bangalore Urban District Consumer Dispute Redressal Forum, in Complaint No.1471/2004.
22) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Party ?
Findings : No
Point No.2 : Whether the Complainant is entitled to recover Rs.19,99,999/- from the Opposite Party as prayed for ?
Findings : No
Reasons :-
Point No.1 :- Following facts are admitted facts that the Opposite Party is International Tour Operator, having its registered office at Thomas Cook Building, Dr. D. Naoroji Road, Mumbai-1. The Opposite Party had published brouchure of their tour known as “Hallmarks of Europe 21 nights – 22 days tour”. After seeing the attractive colorful brouchure of aforesaid tour called as Hallmark of Europe Tour w.e.f.12/07/04 being 22 days international tour covering 8 European countries the Complainant booked 2 seats one for himself and second for his wife. As per itinerary tour programme published in the brouchure, the Complainant and other passengers completed 11 days tour. On 12th day of the tour at Switzerland, Opposite Party had arranged Hot Air Balloon Ride for the tourists. Hot Air Balloon Ride at Switzerland was included in the tour programme. As per the brouchure, the Opposite Party added some adventure to the participant in the tour Hyflier Balloon Ride to the passenger which is carrying the passengers at altitude of approximately 120 Mtr. for super view of Lucerne the Lake and Central Swiss Alps. Alternative arrangement in case of bad weather condition was also made of Imax Theatre.
According to the Complainant Hot Air Balloon ride turn out to be Nightmare when the Complainant was seriously and badly injured and had fractured his leg & knee when the Hyflier Balloon Strayed due to the sudden change in weather & the half hour was terrifying & horrifying as the basket of Hot Air Balloon in which the Complainant and other tour members were sitting crashed with nearby building and hole was created inside the Balloon’s basket and one Co-tourist Indian woman had tragicate end when she felled out through hole created in balloon basket. Opposite Party has submitted that the balloon ride was being organized by State Museum and relationship between the Opposite Party and the State Museum is that of “An Employer – Independent Contractor” only. Therefore, Opposite Party cannot be held liable for the tort committed by the independent contractor. As per Opposite Party, accident took place to the Hot Air Balloon due to sudden change of weather and it was ‘Act of God’, therefore, Opposite Party cannot be held liable for the same. It is submitted that present complaint filed by Smt. Pushpa Shah is nothing but duplication and repetition of Complaint No.275/2007 filed by her husband before this Forum. Both the complaints allegations have been repeated verbatim. In this complaint it is not made clear whether the Complainant Pushpa Shah or her husband suffered fracture of leg. Opposite Party has specifically denied allegations that the Complainant is not suffered fracture of leg or knee injury. It is alleged that the Complainant has deliberately made vague allegations regarding injury with intention to mislead this Forum for her own benefit. The Complainant has not adduced any medical evidence to support her contention that in the said accident she had suffered any leg fracture or knee injury. From the evidence on record it appears that the Complainant’s husband had suffered fracture of leg. However, present Complainant Pushpa Shah has not suffered fracture of leg or knee injury as alleged in the complaint, even though it is alleged in the complaint that after accident the Complainant was treated in Kantonsspital Luzerne Hospital in Switzerland. Absolutely there is no medical evidence to support the allegation that Complainant Pushpa Shah had suffered fracture of leg or knee injury.
It is alleged by the Complainant that Opposite Party has violated basic consumer rights which regarding the safety of consumer and failed to give caution notice regarding “Hazard and dangers of Hot Air Balloon to the Complainant” so as to enable the Complainant to use his discretion/option whether to use Hot Air Balloon ride. In the brouchure of the Opposite Party there is no caution notice regarding Hot Air Balloon ride. The Museum has been flying Hot Balloon Rides since many years, but the safety measures and guards were not enough for Indian passengers. The Museum has contractual relationship with Opposite Party. It is alleged by the Complainant that Museum Pilot of Hyflier Balloon was informed by Fax of Bad weather by the ground centre, but the pilot ignored various warnings blinking lights and risked life of Indian passengers. In support of aforesaid contention the Complainant has relied upon xerox copy of articles published in various newspapers and so called Report of the Bureau submitting that negligence of Museum has been confirmed and therefore, according to the Complainant, Opposite Party is vicariously liable for the accident. The Complainant has alleged following deficiency in service on the part of Opposite Party –
1) Opposite Party is a well known tour operator and is supposed to be well aware of the hazards and dangers in Hot Air Balloon Adventures but failed to alert/inform and caution passengers about the dangers and hazards involved in the Hot Air Balloon Adventure.
2) Providing defective Insurance Policy “Without Accident Death Cover.”
3) Lac of initiative by the Opposite Party is not taking legal action against Swiss Authorities.
It is submitted by the Opposite Party that in the brouchure of the tour Hallmark of Europe itself the Opposite Party explained to the Complainant and other Co-tourist about the nature of the adventure of Hot Air Balloon. It is further pointed out by the Opposite Party that in the brouchure itself it is stated that Hyflier Balloon is subject to weather condition and this itself shows that the Opposite Party well informed to the Complainant about the adventure and the heights the balloon shall go to. In the brouchure the Opposite Party has used ward as Hyflier Balloon Ride as an adventure and it is further stated that Hot Air Balloon was subject to weather condition and alternative arrangement was to visit Imax Theater in case of bad weather condition. As per Compact Oxford English Dictionary 3rd edition meaning of word ‘adventure’ is stated as “1) an usual, exciting and daring experience 2) Excitements arising from the danger or risk after going through the brouchure published by Opposite Party a prudent man can understand that some risk is involved in Hyflier Balloon ride. Considering the facts and circumstances and description of the Hyflier Balloon rider given in the brouchure, it appears that there is no substance in the contention raised by the Complainant that no caution was given by the Opposite Party to the Complainant and other tourist regarding the risk involved in Hot Air Balloon ride.
In the complaint para no.2 itself, the Complainant stated that due to the sudden change in weather, basket of air balloon carrying the Complainant and other tour members crashed with nearby building and hole was created inside the balloon basket. A senior lady passenger after the air turbulence due to the sudden jerk and impact with building had fallen down through hole in the basket and died on the spot. According to the Opposite Party sudden change in the weather was unexpected. It was ‘Act of God’ and therefore, question of deficiency in service cannot be attributed. It is submitted by the Opposite Party that they had taken at most care in selecting Museum Hot Air Balloon operator but due to the act of God the aforesaid incident took place. It is alleged by the Complainant that Pilot of the said Hot Air Balloon was informed by Fax by ground centre about bad weather conditions but the said Pilot ignored the various warnings and risked life of Indian tourist. In support of aforesaid contention the Complainant has relied upon xerox copies various articles published in the foreign newspapers and material down-loaded from the internet. Authenticity of the above articles and other material relied upon by the Complainant is not proved. Xerox copies of the article published in the foreign newspapers etc. cannot be relied upon as a evidence. Absolutely there is no reliable evidence on record to show that ground centre of Museum had sent Fax message to the Pilot of Hot Air Balloon informing bad weather conditions.
Even according to the Complainant, the Museum is operator of Hot Air Balloon rides since last many years. In this case the Complainant has not joined the Museum as party against which allegations of negligence or deficiency in service are made. According to the Opposite Party, Museum which is operating balloon ride is a independent contractor. The Complainant has failed to prove negligence or any wrongful act on the part of Museum – independent contractor. It is submitted that for the sake of argument, even it is negligence on the part of Pilot of Hot Air Balloon – the Pilot being independent contractor, the present Opposite Party cannot be held vicariously liable for the wrongful act of the independent contractor.
From the evidence on record it is clear that the Museum which operates Hot Air Balloon in the Switzerland is an independent contractor. The Complainant has failed to prove any deficiency in service or negligence on the part pilot of Hot Air Balloon ride. Further it appears that the accident mentioned in the complaint took place due to the sudden change in weather which is ‘Act of God’. It is well established that vis; major or Act of God is a good defence in action under Rule of Strict liability. Further principal cannot be held vicariously liable for the wrongful act of independent contractor. Therefore, we do not find substance in the allegations made by Complainant that the Opposite Party is vicariously liable for the aforesaid act.
It is alleged by the Complainant that there is deficiency in service on the part of Opposite Party in providing defective insurance policy “without accident death cover”. It is submitted that according to the Opposite Party Hot Air Balloon ride is an adventure and it involves some risk then in that case Opposite Party must have obtained insurance policy covering death. It is submitted that in the Hallmark of European Tour mentioned in the compliant one senior lady passenger died due to fall from balloon basket. The Complainant has not filed this complaint on behalf of deceased lady tourist. Insurance policy is not produced on record. Opposite Party has denied allegations made in the complaint. Considering the aforesaid facts, we do not find substance in the allegations made by the Complainant regarding defective insurance policy.
Third allegation made by the Complainant is that lack of initiative on the part of Opposite Party. It is alleged by the Complainant that his grievances were not attended by the Opposite Party. Negligence of the Swiss Museum Transport regarding the incident was confirmed by the Swiss Authority and articles published in the newspapers, however, the Opposite Party has not taken initiative in filing legal case against the State Museum of Transport. The Opposite Party is regular international tour operator having wide international network so it was possible to Opposite Party to file suit against the Museum by hiring legal services. But the Opposite Party has not taken initiative in taking legal action against the Museum for deficiency in service. It amounts to deficiency in service on the part of Opposite Party. Opposite Party has denied allegation of lack of initiative submitting that there is no deficiency in service on the part of Opposite Party. The allegations made in the compliant are false and misleading. The Opposite Party requested the Complainant to submit the document and assured that he can trust Swiss proceeding and that all the grievances shall be redressed. The Opposite Party has also provided the contact information of the lawyer appointed for the Complainant and for other passengers. Inspite of several reminders, the Complainant failed and neglected to submit necessary documents to support his claim. The Complainant has suppressed material facts from this Forum. The Opposite Party has disclosed the name of advocate whose services were made available to the Complainant. According to the Complainant, lawyer recommended by the Opposite Party demanded Rs.3,000/- Swiss Franks from the Complainant as a retainer fee.
After the accident medical aid was provided to the Complainant by the Opposite Party at Kantonsspital Luzerne, Switzerland. Thereafter as per the desire of the Complainant, the Complainant was brought to Mumbai for further medical treatment. The Complainant has admitted that Opposite Party has refunded unutilized part of tour i.e. Rs.58,579-. Considering the facts and circumstances of the case, we do not find substance in the allegation of lack of initiative made by the Complainant against Opposite Party.
For the reasons discussed above, we hold that the Complainant has failed to prove deficiency in service or unfair trade practice on the part of Opposite Party. In the result we answer point no.1 in the negative.
Point No.2 : As discussed above the Complainant has failed to prove deficiency in service or unfair trade practice on the part of Opposite Party. The Complainant has admitted that the Opposite Party has refunded cost of unutilized tour. Therefore, we hold that the Complainant is not entitled to claim any compensation/damages or any other relief from the Opposite Party. Hence, we answer point no.2 in the negative.
For the reasons discussed above, complaint deserves to be dismissed. Hence, we pass the following order -
O R D E R
i.Complaint No.274/2007 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
