Delhi

East Delhi

CC/357/2014

PRADEEP - Complainant(s)

Versus

THOMAS COOK - Opp.Party(s)

11 Jul 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 357/2014

 

1     2     3     4     5	PRADEEP KUMAR NANDAL SON OF SH. SUNIL SINGH   VEENUM NANDAL WIFE OF PRADEEP KUMAR NANDAL   ROHAN NANDAL SON OF PRADEEP KUMAR NANDAL   SANCHIT NANDAL SON OF PRADEEP KUMAR NANDAL   NISHANT NANDAL THROUGH GUARDIAN PRADEEP KUMAR NANDAL   ALL AT: HOUSE NO. 270/29, RAM GOPAL COLONY, ROHTAK, HARYANA	….Complainants
Versus
	M/S THOMAS COOK (INDIA) LTD. THROUGH ITS MANAGING DIRECTOR C-35, INNER CIRCLE, NEW DELHI-110020	……OP

 

Date of Institution	:	11.04.2014
Judgment Reserved on	:	04.07.2023
Judgment Passed on	:	11.07.2023

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

Order By: Shri S.S. Malhotra (President)

 

JUDGEMENT

1. By this order the Commission shall dispose off the claim of the Complainants against OP w.r.t. deficiency of service in not providing agreed facility to the complainant on its foreign tour. 
2. It is submitted that complainants are consumers and were members of S.P. Aggarwal and Group consisting of 38 members and Sh. S.P. Aggarwal for himself as well as for all the group members signed and executed a contract with OP for arranging the 17 days Tour package from 04.06.2013 to 21.06.2013 to visit European Countries and the contract was signed and handed over along with the day wise itinerary to the complainants.  Rs.1,93,000/- was fixed to be the charges per person on twin sharing basis for adults and Rs.1,45,000/- for child below 12 years without VAT, including 3.09% service tax which all was paid and it included booking of Air Tickets, applying and collecting VISA from concerned Embassy, Accommodation in 3 Star Hotels including Buffet, Breakfast, Lunch and Dinner in Indian Restaurants, Guide, Site Seeing in Coach as per itinerary and all others ancillary visits as per the itinerary. From the very beginning the OP was negligent in providing even basic services in as much as incomplete and insufficient details of the hotels, and delay information w.r.t. the Hotel.  Some of the incidents showing glaring deficiency in services are that refusal of VISA to three persons i.e. Parul Manoj Suhag, Rahul Manoj Suhag and Suman Manoj Suhag due to submission of wrong documents which led to the cancellation of whole trip of these three people, and another glaring fact was that denial to refund the amount paid by four persons namely S.P. Aggarwal, Saroj Bala, Astha Aggarwal and Shaurya Aggarwal who could not commence the trip due to some personal reasons although they joined late and there amount was not refunded by OP.  The OP treated all the complainants casually and never performed the services as ‘assured and agreed’ in the contract.  It is further submitted that due to some personal and emergent reasons, Complainant No.1 and 2 were unable to accompany with the group on 04.06.2013 which was intimated in advance to the OP and it was further informed that the Complainant No.3 to 5 would join the trip w.e.f. 08.06.2013, but the OP did not refund the amount of complainant 1 and 2 despite writing in advance.  The OP was given prior information w.r.t. Complainant No.3 to 5 but OP did not re-route the tickets and thus Complainant No.3 to 5 had to purchase another ticket from India at their own expenses and went directly to Amsterdam on their own expenses and joined the group at Hotel Amrath at Breda, Amsterdam provided by OP and Complainant No.3 to 5 were surprised when they observed this hotel was around 130 Km far away from the main city whereas Complainant No.3 to 5 and all group were supposed to be provided  the accommodation at Centre of Amsterdam City, which was not provided and complainant No.3 to 5 had to arrange proper accommodation at the cost of Rs.75,000/- from their own pocket, and various incidence of deficiency in service at Amsterdam and other places are explained and it is specifically mentioned that when Complainant No.3 to 5 were proceeded to Austria at Beat Seefeld, they were taken to a hotel ‘Tyrol’ which was not in the list of hotels and was booked instantly after reaching.  The said hotel was even worse than Dharamshala and Complainant No.3 to 5 were provided Dormitories /beds instead of separate rooms.  The Guide did not show the beautiful City of Mozart-sailzburg to the Complainant No.3 to 5, Complainant No.3 to 5 were served with breakfast containing bread butter and jam only instead of continental buffer breakfast and even were not shown the famous sites like Swarovski Museum, Golden Roof, Maria ride of ‘Cogwheel’ etc. as mentioned in itinerary and similarly same breakfast was served on 18.06.2013, 19.06.2013 and 20.06.2013 and the famous sites mentioned in the route/itinerary were never got visited by the Guide of the company and ultimately it is prayed that OP be directed to refund the amount of Rs.9,94,818.04/- paid to OP for the trip, along with interest @ 18% p.a. and Rs.50,000/- towards compensation and litigation charges. 
3. Affidavit of Complainant No.1 Pradeep Kumar Nandal is attached with the Complaint.    
4. OP has filed its Written Statement taking preliminary objections that the present complaint is false, vexatious, frivolous and without any cause of action, the allegation mentioned are fabricated, motivated and unsubstantiated and is not maintainable as the complainant have been failed to make out the credible case against the OP in support of the allegation of harassment or mental agony as alleged.  The Complainant have not disclosed any facts or cause of action to support the allegation.  The Compensation as sought along with the refund is imaginary, preposterous and in any case is excessive and it is submitted that complainant have miserably failed to establish that they have suffered any loss for reasons as alleged.  It is further submitted that complainant have simply put up preposterous and fanciful amount of compensation and therefore the same is liable to be dismissed and may kindly be dismissed. 
5. On merit, it is denied that complainant had suffered any loss due to any act of the OP and it is submitted that out of 38 only 35 members have travelled on the said agreed tour.  It is further stated one S.P. Aggarwal on behalf of complainants and other members had entered into MOU therein terms and conditions were specifically mentioned on travel arrangements and since passengers had not taken any specific group tour but had opted to travel as individual travelers and thus opted for travel arrangement for their group only, the booking therefore was made on ad-hoc booking subject to payments as per terms and conditions.  The schedule departure date was 04.06.2013.  It is further stated that as far as issuance of the VISA is concerned the same  is sole discretion of the VISA issuing authority, the OP has no role in it except a limited role only to the extent of assisting the complainant in obtaining VISA and any refusal of VISA cannot amount to be deficiency in service by OP.  As far as meals are concerned Indian vegetarian meal was agreed to, which was provided and it is further submitted that as far as the deficiency w.r.t. accommodation is concerned the services provider in foreign countries confirm the booking only after the complete payment is made whereas in the present matter the complainant had made the complete payment only on 03.06.2013 whereas the date of departure was 04.06.2013 and hotel booking therefore were only provisional for want of making payment by the complainant, All the sight-seeing were shown as agreed.  All the contents w.r.t. providing not proper meal in the hotel and not proper accommodation was provided have been explained here in above and ultimately it is prayed that complaint of the complainant be dismissed.   
6. Complainant has not filed Rejoinder and has filed his own evidence and OP has filed evidence of Ms. Anita Patani (D/o  Mr. J.N. Patni) General Manager of the OP. 
7. The Commission has heard the arguments and perused the record. 
8. Prior to coming to the aspect of the deficiency of the services, it is observed by the Commission that the office of the OP is situated in New Delhi and no cause of action has allegedly arisen within the territorial jurisdiction of this Commission, rather what is written in Para 28 of the complaint is that the OP has its Office in Delhi and they work for profit within the jurisdiction of the Hon’ble Forum.  It is further stated that as entire Delhi is one District hence this Hon’ble Forum has got the jurisdiction to entertain and try this complaint.  In reply thereto the OP has submitted in the Written Statement that this Hon’ble Forum has no jurisdiction to try and entertain the present complaint. As per Consumer Protection Act the jurisdiction of the Commission now has been defined as:

Section 34 of Consumer Protection Act, 1986, which reads as under:

 

(1)…

 

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, -

 

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or] personally works for gain, or

 

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 'I carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or

 

(c) the cause of action, wholly or in part, arises.

9. Therefore before deciding the issue w.r.t. any deficiency, the first issue which this Commission has to decide is as to whether this Commission has the territorial jurisdiction to entertain the present complaint.  The Hon’ble NCDRC in a recent judgment dated 03.03.2023 in The Concerned Nurse Vs. Lalan Prasad Sharma & Dr. Jitender, C.M.O in Revision Petition No. 3439 of 2018 has held ‘for resumption of jurisdiction by a Court or a Tribunal existence of jurisdictional fact is a condition precedent’ while referring to the judgement of Hon’ble Supreme Court in Dr. Jagmittar Sain Bhagat & Ors Vs. Dir. Health Services, Haryana (2013) 10 SCC 136 wherein it was held that:

‘7.  Indisputably, it is settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply.  

10. As per the bifurcation details of Districts Commissions taken out from the internet, the contention of the complainant that all Delhi is one District does not appear to be well found.  Once a particular area has been assigned to a District Commission then the matter pertaining to that area only can be adjudicated by that particular Commission.  Therefore, in the considered opinion of this Commission, this Commission does not have the territorial jurisdiction to entertain the present complaint.  Therefore, the Commission is not touching the merits of the case and the complaint of the complainant is ordered to be returned to the complainant as per rule, with liberty to file the same before the court of appropriate jurisdiction.  Copy of the Complaint be returned to the complainant by retaining the photocopy of all the documents. 

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room. 

Announced on 11.07.2023.