BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.8/2014

Dated this the 2^nd day of March 2016

1. T. Amirdaraju, son of Tangapregassam

2. Selvi Arokiamary, D/o Amirdaraja

Both are residing at No.90, Perumal Naidu Street

Muthialpet, Puducherry – 605 003.

                                                ….     Complainants

Vs.

1. Thomas Cook (India) Ltd., rep. by

    Authorized signatory

    Thomas Cook Building, Dr. D.N. Road,

    Mumbai – 400 001.

2. Thomas Cook (India) Ltd., rep. by its

    Manager Leisure Travel (Out bound)

    No.351, Mahatma Gandhi Road,

    Pondicherry – 605 001.

                                                ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A., B.L., 

           MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B., 

           MEMBER

FOR THE COMPLAINANT            :  Tvl. M.V. Vaithilingam,

                                                               S. Ramakrishnan   and A. Srivatsan,         

                                                              Advocates.  

FOR THE OPPOSITE PARTIES     :  Thiru S. Vimal, Advocate

O R  D  E  R

(By Thiru.A. ASOKAN, President)

This is a complaint filed by the complainant under sections 12 and 14 of the Consumer Protection Act, 1986 praying to direct the opposite parties

1. To refund a sum of Rs.2,23,568/- towards the charges paid for the tickets by the opposite parties to the complainants;
2. To pay a sum of Rs.15,000/- towards charges for hiring transport from Pondicherry to Chennai Air Port on 16.05.2013 and Chennai Airport to Pondicherry on 17.05.2013 and telephonic charges from 17.05.2013 and subsequent dates to the complainants.
3. To pay a sum of Rs.2,00,000/- towards compensation for mental agony and suffering due to deficiency in service and the Negligent Act of both the opposite Parties;
4. To pay the costs of the complaint.

2.  The case of the complainant is as follows:

          The complainants are having Indian Passports vide Nos. F 2368007 and J 8525099 valid from 21.03.2005 to 20.03.2015 and from 18.10.2011 to 17.10.2021 respectively. The complainants wanted to visit France and Switzerland through package tour offered by the first opposite party from 17.05.2013 for nine days and approached the second opposite party, who being the branch office of the first opposite party and requested to book tickets to go to France and Switzerland.  The first complainant paid a sum of Rs.2.23.568/- on 25.03.2013 and 12.04.2013 towards the charges for tickets including other charges to the opposite party like obtaining visa, commission etc.  as requested by the second Opposite Party.  The second OP after obtaining visa and after verifying the passports of both the complainants had issued to and from confirmed tickets travelling from 17.05.2013 to 25.05.2013 through Qatar Airways.  The complainants went to Chennai International Airport on 17.05.2013 from Pondicherry by Hiring Mini van along with their family members.  After necessary formalities were completed like security check-u[, customs, screening of package and tags attached by the Officials and got boarding passes for travelling in the concerned Flight at 04.30 hrs. and when the complainants went to reach the Flight, the Officer of the Immigration verified all the travel documents of the complainants and informed that they would not allow the complainants to travel since the concerned Visa is German Visas that too obtained from Bangalore Office by the Opposite Parties.  The complainants came to know that the said Visa is known as Shengen Visa which is eligible for visit to German only and ultimately the immigration officers detained the complainants without boarding to the concerned Flight and directed them to meet their higher officials in the Chennai Airport for further clarification, who in turn, sent them to meet a lady official from German Embassy available in the Airport at that time who informed that obtaining Shengen visa from Bangalore instead of Pondicherry is not appropriate and by that visa obtaining from Bangalore, the complainants would be allowed first to proceed to Germany and after staying there for a week, then only they would be permitted to visit France and Switzerland as per their packaged tours programme and directed both the complainants to meet her at the German Consulate Office at 10.00 a.m.  The Higher Officials of German Consulate General Office informed that the opposite parties were not given proper particulars for obtaining visa and that the opposite parties ought to have obtained visa from French Consulate instead of German Consulate and also informed that the opposite parties did not approach the Bangalore German Consulate and cancelled their entry made in the passport of both complainants and advised these complainants to initiate appropriate action before the Court of Law.  The German Consulate General in Chennai has also issued order of cancellation / revocation of Visa dated 17.05.2013 to the complainants wherein, it is clearly stated that "they would therefore have to apply for the Visa at the French Diplomatic Machine"'  "the Vulnerability of these issues that would be associated with the entry inspite of misrepresentation in the Visa application cannot be accepted until the incontestability this decision".  The complainants were forced to return back Pondicherry from Chennai Airport.  The complainants immediately contacted the second opposite party but, he had not taken any steps to question the cancellation or provide alternative remedy.  The act of the opposite parties are totally negligent and deficiency in their services.  On 18.05.2013 the first complainant sent a letter to the second opposite party to rearrange the same tour within a week's time for which no response from the second opposite party.  Therefore, the complainants had issued a lawyer's notice on 13.06.2013 which was received by the opposite parties, but failed to either pay the amount or gave any reply.  Hence, this complaint.

3.       The following are the averments narrated in the reply version filed by the Opposite Parties.

          Apart from denying the allegations mentioned in para Nos. 4 to 9 of the complaints, the opposite parties stated that before booking the tour, the complainants have read and understood the Terms and conditions of travel and voluntarily signed by booking terms wherein, the cancellation policy is mentioned as under.  "All clients travelling on Thomas Cook Holiday Tour must be in possession of valid passport with minimum validity of 6 months from the date of travel and obtained any visa required.  However, kindly note that it is entirely at the discretion of 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 will not be responsible for non-issuance of Visa due to receipt of incomplete or delayed documents from the clients.  It is possible that consulate may ask the passenger for additional documents or to appear for personal interview.  This is the sole discretion of the consulate authorities.  Passengers whose visas are not granted by the consulate will have to pay the administrative charges apart from the Visa expenses and the balance deposit amount will be refunded.  Cancellation charges which occur on account of Visa rejection will need to be borne by the client".   It is stated by the opposite parties that France, Switzerland, Germany among other countries form part of Schengen States having a Federal territory and people travelling across the countries are permitted to travel through the federal territory with common Visa called Schengen Vis (Federal Visa).  Since the complainants were in a rush to travel within a short span of 2^nd complainant's college vacation and since obtaining schengen visa through the German Consulate, Bangalore was the only feasible option in the said short time, a Federal Visa was obtained by the Opposite Parties for the complainants through one of the Schengen Countries i.e. through German Consulate in Bangalore to travel to France and Switzerland with the knowledge and permission of the complainants by obtaining ther signatures in the Visa Application forms which they had signed knowing the contents of the application.  However, the Consulate General o f the Federal Republic of Germany, Chennai in exercise of its subjective discretion decided to cancel / revoke the Visa of the complainants and insisted that the complainants apply for Visa at the French Diplomatic Mission.  The opposite parties further stated that during the process of Visa application, the Opposite parties have validly furnished all the tour information, Hotel details, air tickets to the Consulate and after perusing the documents, the German Consulate has not rejected visa or refused to accept the documents from Opposite Parties for the reason that the said Visa application is not under purview of German Consulate.  Further, while accepting the application for Visa the German consulate had neither rejected the application nor directed opposite parties to withdraw  and prefer visa application before French Consulate.   Further, the office of consulate always scrutinizes and verifies the genuineness of documents and Visa application before granting Visa to tourists and since German consulate has validly granted Visa to complainants, it can thus be inferred that that documents and information submitted by opposite parties were valid and proper from the point of view of consulate.  Thus, the opposite parties have done their services to the complainants with all sincere and bona-fie intentions and are neither negligent nor deficient in their service consequently, there cannot arise any mental agony or suffering to the complainants.  It is stated by the opposite parties that soon after receipt of the Advocate Notice, they had tried to amicably resolve the issue that cropped up between them, though unintended by them, by calling the first complainant over phone but could not succeed due to want of time and hence, the Advocate notice was not responded.  The documents filed by the complainant are insufficient and the veracity of the documents are questionable and hence, the complainants are required to prove the same with authentic documents and by examining the authors of the documents.  Hence, prayed for dismissal of the complaint.

4.       Points for determination are:

          1. Whether the complainant is a Consumer?

          2. Whether any deficiency in service attributed by the Opposite Parties?

          3. To what relief, the complainant is entitled for?

5. On the side of the complainant, CW1 was examined and Exs.C1 to C16 were marked.  On the side of the Opposite Parties, no witness was examined and no documents marked.  

6.       Point No.1:

          The Opposite Parties are Travel Agents and conducting tour packages also by having registered office at Mumbai and a branch office at Pondicherry.  The complainants utilized their services to visit France and Switzerland through package tour offered by the first opposite party and paid a sum of Rs.2,23,568/- with the second Opposite party on  12.04.2013 vide Exs.C1 to C6 and the service of the Opposite Parties in the above context comes within the definition of Section 2 (1) (o) of Consumer Protection Act and hence, the complainants are held as  Consumer to the Opposite Parties.

7.       Point No.2:

          The complainants are having valid Indian Passports and they wanted to visit France and Switzerland from 17.5.2013 for nine days and approached the second opposite party  and requested to book tickets to go to France and Switzerland and also paid a sum of Rs.2,23,568/- towards ticket charges and other incidental expenses.  The second opposite party issued to and fro confirmed tickets travelling from 17.5.2013 to 25.05.2013 vide Ex.C6 through Qatar Airways.  When the complainants  were about to boarding the Flight after completion of all formalities, the Immigration Officer not allowed them to travel since the Visa is German Visa obtained from Bangalore Office.  Thereafter, the complainants came to know that the Visa obtained by the Opposite Parties is Schengen Visa which is eligible for visit to German only.   Further, it is informed by an Officer of German Consulate that as per the Visa which was obtained by the Opposite Parties to the complainants, they are eligible to proceed to Germany and after staying there for a week and then only they would be permitted to visit France and Switzerland.  Further, the officials of German Consulate at Chennai insisted the complainants to obtain Visa from French Consulate and also cancelled their Visa vide Ex.C9.  The complainants informed the same with the second opposite party and requested to make alternative arrangements vide Ex.C13 letter dated 18.05.2013, but the opposite parties have not done so.  Hence, the complainants issued a legal notice dated 13.06.2013 vide Ex.C14 to the opposite parties for which also the opposite parties through received, did not respond.  Hence, the complainants preferred this complaint.    

8.  The Opposite Parties gave a counter for the allegations raised against the Opposite Parties by way of reply version stating that France, Switzerland, Germany among other countries form and part of Schengen States having a Federal Territory and people travelling across the countries are permitted to travel through the federal territory with common Visa called Schengen Visa (Federal Visa).  Since the complaints were in a rush to travel within a short span of time, it would be feasible to obtain visa from German Consulate, Bangalore and hence, they have obtained  Visa to the complainants with the knowledge and permission of the Complainants.    It is the further allegation of the opposite parties that they have furnished all the tour information, hotel details, air tickets to the Consulate and after perusing the same, the German Consulate has not rejected Visa or refused to accept the documents from Opposite parties.  The office of Consulate always scrutinizes and verifies the genuineness of documents and Visa application before granting Visa to tourists and since German Consulate has validly granted visa to complainants, it could infer that the documents filed by the opposite parties are valid and proper.  Hence, there is no negligent act on the part of opposite parties and that there is no deficiency in service. 

9.   On the perusal of the complaint and the reply version and the exhibits marked by the complainants,  it is evident from the Exs.C1 to C5, the complainants booked a package tour to France and Switzerland with the second Opposite Party.    Further, on perusal of Ex.C6, the complainants were given with confirmed Flight Tickets to enable them to proceed France and Switzerland through Qatar Airways.  The dispute arose only when the complainants were about to board the Flight at Chennai International Airport, the Immigration Officer not allowed them to board the Flight since the complainants were having German Visas instead of Visa issued by France.  With the German Visa, the complainants entitled to go to Germany and should stay there for a week and then only, they will be permitted to proceed France and Switzerland.  In this regard, the Opposite parties stated that due to shortage of time, they have arranged Visa to the complainants through German Consulate, Bangalore and since the France, Switzerland and Germany Forms part of Schengen States, they have obtained Visa from German Consulate, Bangalore.  But, on perusal of Ex.C10 Cancellation of Visa issued by Consulate General of the Federal Republic of Germany, Chennai, they have stated that "you have mentioned in the visa entry that your main travel destination was Germany.  The main travel destination was however always France according to your information.  Travelling (also) to Germany was not however intended at any point.  You should have therefore applied for a visa with the French Diplomatic representation".   It is pertinent to mention here that due to false information given by the Opposite Parties to the authority while obtaining Visa for the complainants have caused hindrance to them to proceed France and Switzerland.   

10. The Opposite Parties not filed any documents and adduced oral evidence.  It is pertinent to mention here that the opposite parties in their reply versions have stated that they have furnished all the tour information, hotel details, air tickets etc. to the Consulate and after carefully scrutinized all the documents, the German Consulate at Bangalore has issued Visa to the complainants. If there was any false information, the Consulate might have rejected the Visa application.

          11. Admittedly, there was no dispute until the complainants reaches the Flight on 17.05.2013.  The complainants were issued with confirmed tickets, but it is the duty of the Opposite Parties to check the travel documents of complainants and they must know the rules existing regarding travel to France by having German Visa that too issued by German Consulate at Bangalore.  If the opposite parties had informed the complainants the rules existing at Chennai, the complainants would have changed their schedule and proceeded to France with French Visa.  Having failed to do so, the opposite parties permitted the complainants to proceed France with the Visa issued by German Consulate.  This Forum has observed that the Opposite parties with lack of knowledge arranged such tour programme and got money from the complainants.  Further, after receipt of letter Ex.C13 from the first complainant and after the receipt of legal notice dated 13.06.2013 Ex.C14, the opposite parties did not come forward to make alternate arrangements to the complainants to enable them to proceed France and Switzerland as scheduled by them.  Hence, the complainants have established the negligent act of Opposite parties and therefore, the complainants are entitled to claim compensation from the opposite parties for mental agony, loss of money on the reason for deficiency of service by the Opposite Parties.    The learned counsel for the opposite parties would submit that grant or rejection of Visa is at the discretion of concerned Consulate for which, they will not be held responsible.  In this case, the complainants have given all the proper documents and they have also been scrutinized by the concerned authority and issued Visa.  The Immigration Officer has cancelled the visa while boarding the flight due to the reason that the information furnished by the complainants are false.  They have not cancelled the visa for the reason that the complainants have not given proper documents.  Hence, the mistake is committed only by the opposite parties due to lack of knowledge in obtaining the schengen visa.  Hence, the plea taken by the opposite parties in this regard is not sustainable.

          12. The complainants have claimed the travelling expenses and the telephonic charges.  Since no documents have been produced for engaging a vehicle to go to Chennai and for return and also payment of fares, the same were not considered by this Forum.  Hence, the complainants are not entitled for some compensation for the above said expenses. This point is answered accordingly.

          13.  Point No.3:

          In view of the discussions in Point Nos. 1 and 2 aforementioned, the Opposite Parties are held liable for the mental agony suffered by the complainant for the acts attributed due to the deficiency in service of the Opposite Parties.  The complaint is hereby allowed and the Opposite Parties are directed to

1. refund a sum of Rs.2,23,568/- towards the charges paid for the tickets by the complainants
2. To pay the complainant a compensation of Rs. 1,00,000/- towards deficiency of service and for the loss and injuries suffered by the complainants;
3. To pay a sum of R.s.5000/- towards the cost of this proceedings.

The orders pronounced above, should be complied by the Opposite Parties within two months from the date of receipt of this order.

Dated this the 2^nd day of March 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1          15.09.2014           T. Amirdaraju

CW2           19.01.2015           Rajesh

OPPOSITE PARTY'S WITNESS:  NIL

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: NIL

LIST OF MATERIAL OBJECTS: NIL

( A. ASOKAN )

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

MEMBER