PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 22nd day of September 2012
Filed on : 14/12/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 693/2011
Between
Jose Paul, : Complainant
S/o. Paul, Njavallil house, (By Adv. Roy Varghese,
Keezhukunnu, Olimolath, Pancode P.O.,
Collectorate P.O., Ernakulam-682 310)
Kottayam, now working as
Manager, State Bank of India,
Kottayam Branch.
And
Trail Blazer Tour India Pvt. Ltd., : Opposite party
Rep. by its Manager, 1st floor, (By Adv. P. Sanjay, M/s.
Mattammal Building ,M.G. Road, Sanjai & Parvathy, ‘Neeti’,
Ravipuram, Kochi-682 017. CC43/375K, Paul Abrao
Road, Ernakulam North,
Kochi-682 018)
O R D E R
A Rajesh, President.
The opposite party had arranged an overseas programme from 26-05-2008 to 10-06-2008 for the complainant, his wife and kid to Kualalumpur-Bangkok and back. The service and facility provided by the opposite party to the complainant and his family was abysmally poor and substandard and against the agreed descriptions in their itinerary. There was no agent from the opposite party’s end to take care of the complainant and his family at Kualalumpur and the complainant and his family were forced to wait in the hotel lounge till 4 p.m. on 27-05-2008 without breakfast and lunch. The city tour specified in the itinerary was not provided and the complainant had to expend for city tour and the agent of the opposite party charged $ 427 towards air ticket to Bangkok. The complainant incurred a sum of Rs. 8,500/- towards visa charges at Kualalumpur and Bangkok. The complainant and his family was forced to wait at Gentling for the whole day due to mismanagement of the opposite party and they missed the city tour in Bangkok. On 04-06-2008 the opposite party’s agent was late for 3 hours and the complainant and his family were forced to wait at Delhi Airport in the night. The accommodation provided at Delhi Airport was substandard. As per the schedule the leaving time was 7.20 a.m. where the opposite party provided train ticket for evening train at 4.20 p.m, thus the complainant and his family missed the important places like wagah Boarder, Golden Temple, Jallianwalah Bag etc. The tour conducted by the opposite party was not in par with the itinerary. Due to the negligence and laches on the part of the opposite party the complainant had to suffer additional loss to the tune of Rs. 36,000/-. The complainant is entitled to get the said amount together with a compensation of Rs. 2 lakhs and Rs. 2,000/- towards costs of the proceedings.
2. The version of the opposite party is as follows:
The opposite party had introduced package tours for government employees and those who employed in the pubic sector in India for availing their Leave Travel Concession (LTC). The complainant contacted the opposite party on 21-05-2008 and asked to send full details. The details of the tour was sent to the complainant by e-mail since there was no ample time the complainant opted to visit Malaysia and Thailand because for these places visa could be obtained on arrival. Since visa was to be obtained on arrival and hence to be paid by the complainant at the destination the opposite party did not include visa charges. Amritsar was included in the itinerary because he would be eligible for claiming highest LTC from his employer. The air ticket to and fro Kualalumpur and Bangkok was not included in the package since it is generally cheaper to book tickets locally. He was specifically asked to purchase the tickets immediately on arrival because the earlier the tickets are purchased the cheaper the fare. He failed to book the ticket and the booking was made very late and he had to incur more expense. The booking of the ticket was not undertaken by the opposite party. The complainant arrived at 8.15 a.m. in Kualalumpur. Since the check-in-check-out was 12 noon the complainant could be provided room only thereafter, early check in would have meant payment of rent for one more day. The complainant was provided the room after 12 noon, the complainant spent the day in Koalalumpur and was to take the city tour the next day. The complainant and his family were not ready at the appointed time and hence missed the tour because the coach left on time and so a private car was arranged without any additional cost in Thailand. The complainant took a late flight and arrived at Bangkok very late flight and arrived at Bangkok very late and missed the tour there. However the opposite party arranged the tour next day though not liable to do so. The complainant reached in Delhi being a Wednesday the Swarna Shatabdhi Train was not available and the complainant was booked an another train. Since the complainant had travelled by a different train he could not take the trip to Wajah. The cheque issued by the complainant for the balance amount of Rs. 31,500/- was dishonoured. At that juncture the complainant demanded a pre-dated invoice of the trip at a much higher rate to claim higher LTC. The opposite party issued a dummy invoice. However the complainant did not pay the balance amount. The opposite party believes that this complaint is a ruse for the non payment. The complainant is not entitled to get any of the reliefs as claimed for.
3. At the threshold the complainant approached the Hon’ble Consumer Disputes Redressal Forum, Kottayam by filing CC 693/2011. Thereafter the complainant was examined as PW1 and Exts. A1 to A19 were marked. The witnesses for the opposite party were examined as DW1 to DW4 and Exts. B1 to B6 Exts. X1 to X4 also were marked. The Hon’ble Consumer Dispute Redressal Forum, Kottayam vide order dated 16/08/2011 found that they lack territorial jurisdiction to entertain the complaint. Therefore the complaint was lodged in this Forum and the complaint was renumbered. Heard the counsel for the parties.
5. The points that came up for consideration are as follows:
i. Whether the complainant is entitled to get refund of Rs.
36,000/- the additional expenses incurred by him during the
tour programme ?
ii. Whether the opposite party is liable to pay a compensation of
Rs. 2 lakhs and Rs. 2,000/- towards costs of the proceedings
to the complainant?
6. Point Nos. i&ii. Admittedly the complainant and his family consisting of wife and kid availed the tour package of the opposite party to Kualalumpur – Bangkok for the period from 26-05-2008 to 10-06-2008. Though the complainant and the opposite party had raised different version regarding the cost of the tour package, during evidence the parties stated that the mutually agreed cost of the tour was Rs. 1,60,000/-. Out of the said amount the complainant paid a sum of Rs. 1,13,500/- vide Ext. A13 receipt.
7. According to the complainant apart from the amount as per Ext. A13 he had paid a sum of Rs. 62,750/- to the opposite party for which the opposite party did not issue any receipt and issued Ext. B5 cheque to the tune of Rs. 31,500/-. The opposite party maintains that out of the total amount of Rs. 1,60,000/-, they have received the amount as per Ext. A13 receipt, Rs. 15,000/- by cash and Ext. B5 cheque to the tune of Rs. 31,500/- which was later dishonoured for the reason “withdrawal stopped” evident from Ext. B 5 (a) Memorandum. It is stated that the opposite party is entitled to get the amount as per ext. B5 from the complainant.
8. Since the tour cost agreed to by the parties was Rs. 1,60,000/- the purported payment of Rs. 62,750/- by the complainant to the opposite party can not be believed for the simple reason that the complainant is not supposed to pay more than the amount agreed upon and the account put forward by the opposite party is more probable. So the opposite party is entitled to get the amount as per. Ext. B5 cheque with interest.
9. The complainant contended that the tour programme wa initiated as per Ext. A1 itinerary which had been forwarded by the opposite party at the out set. The opposite party argued that Ext. B4 is the itinerary issued by them for the tour programme. The definite case of the complainant is that the entire tour package was on the basis of Ext. A1 itinerary alone. The opposite party has not denied the same in their version and there is no mention of Ext. B4 either. In that view of the matter we are only to hold that the tour programme was conducted as per Ext. A1 alone.
10. As per the argument note of the complainant, the complainant highlighted the following deficiency in the service on the part of the opposite party during the tour programme in contra to Ext. A1 itinerary.
a. The opposite party has not given the flight ticket from
Kualalumpur to Bangkok. The complainant had to buy it .
b. Due to non arrangement of Kualalumpur – Bangkok flight
ticket the complainant and his family could not go to
Genting tour
c. They could not make the Bangkok city tour.
d. They had to wait unnecessary for 3 hours in the Delhi Air
port.
e. they could not enjoy the Amritsar city tour and Waga
Boarder retreat.
f. They had to wait in the Delhi Railway Station for 7 hours as
the train arrived only at 4 a.m.
g. They had to wait till 12 noon in the hotel lobby of
Kualalumpur from 8.15 am without breakfast and lunch
h. They had to pay for visa charges in Thailand and Malaysia.
i. No. A/C. car was provided for Waga Boarder visit as
promised.
11. Now the question arises whether there was any deficiency in service on the part of the opposite party in conducting the tour programme as per Ext. A1. Ext. A1 is reproduced for convenience.
“Day 01:26th/27thMay“08: Cochin/COLOMBO/KUALALUMPUR
Assemble at Cochin airport at 0630 am, check-in starts at 0645 am for UL 166 and depart at 1012 am. Arrive Colombo at 1135 am. Then connect UL 316 on 27th May at 0 215 am, Arrive Kuala Lumpur at 0815 hrs. Upon arrival meet our staff holding the Ply card in your name and identify them. Transfer to Hotel. Check in at Hotel Grand Continental or similar.
Proceed on a City tour of Kualalumpur, Dinner at Restaurant .(L,D)
Overnight at hotel in KUL
DAY 02:28th MAY ’08: KULALUMPUR
After your Breakfast, enjoy half day city tour that takes you past some of Malaysia’s beautiful landmarks. Visit Merdeka Square and the famous PETRONAS Twin Towers. Visit the Jamek Mosque, the Kings Palace and the national Museum. Drive past the Parliament house, the supreme court and Chinatown, Spend rest of the day lunch at Restaurant.
Dinner at Restaurant. Overnight at hotel (B,L,D)
Day 03:29th MAY ’08: GENTING HIGHLANDS/KUALALUMPUR
After breakfast again the day is for you to enjoy. You can pay and take advantages of a ten pin bowling or snooker, a Hourse ridding, golf, jungle trekking and swimming in a heated indoor pool or try your luck at Casino de Genting, the largest Casino in the Region. (Please note all these rides are not included in the tour cost and you need to pay for it directly). Also you will have the opportunity to visit its out door Theme Park with many rides. Entrance ticket will be provided. Spend full day amidst unlimited rides in the out door theme park, enjoy hi-tech rides, rollercoaster’s, games, show and more. Today you will enjoy the delicious lunch at the Genting Highlands. Rerun back to Kulalumpur Dinner at the hotel and overnight stay in KL (P.L.D)
Day 04:30th MAY ’08: Kualalumpur : Bangkok
After Breakfast check out the hotel and transfer to Airport to catch TG 416 to Bangkok at 1320 pm. Upon arrival meet our representative holding your ply card in your name. Transfer to the hotel in Bangkok. Upon arrival Proceed for a city, Temple tour of Bangkok. Visit the famous Wat traimit or the golden Budha made of sold gold weighing five and half tons, the marble temple or Wat Benchamabopit and Wat Po or the temple of the Reclining Budha, an enormous Budha, an enormous Budha covered in a gold leaf. Lunch at Indian restaurant in Bangkok
Overnight at Ambassador Main in Bangkok (B)
Day 05: 31 May2008 : BANGKOK.
After the breakfast proceed for full day tour to safari world and Marine Park including lunch. Back to hotel, rest of the day is free for exploring the fabulous shopping centers like Sogo department stores, MBK centre and gaysorn plaza on your own.
Overnight at Ambassador Main in Bangkok (B)
Day 06:1 Jun 2008 : BANGKOK ; PATTAYA
After breakfast check out the hotel and transfer to Pattaya Checkin to hotel.
Overnight Stay at New day-Night Pattaya (B)
Day 07:2 u 2008: PATTAYA
After Breakfast, Proceed for to Visit to Coral Island, famous for colorful corals and marine life. Start with an exiting ride in a speed boat to the coral island. Then, hop in a glass bottom boat to a view the beautiful marine life and world of colorful corals.
Enjoy optional water sports like parasailing snorkeling and windsurfing. After having lunch free for leisure. Back to the
Overnight stay at New day – Night Pattaya. (B)
Day 08:03 Jun 2008: PATTAYA – BAMGLPL – COLOMBO
After the Break fast, morning free for leisure. After noon check our the hotel and proceed to Bangkok to catch UL 425 at 2110 to Colombo and reach at 2255. Upon arrival meet Srilankan airways staff at the counter to obtain Hotel voucher for overnight stay in Colombo.
Day 09:04 Jun 2008: Colombo – Delhi
In the afternoon transfer to Airport to catch UL 195 at 1510 and reach at Delhi on 1845. Meet our staff with ply card of your name and transfer to the hotel in Delhi. Overnight stay at Delhi.
Day 10:05 Jun 2008: Delhi – Amritsar.
After breakfast, check out from the hotel and transfer to Delhi Railway station to Amritsar. Swana Shadabdi leaves Delhi at 0720 hrs. Arrive Amritsar at 1310. check in at Ritz PLAZA. Proceed to a for the City tour of Amritsar, covering the Wagah Boarder Golden Temple, Jalian Walah bagh etc. Arrive back to the Hotel at 1800 Hours. Overnight at the Hotel (D).
Day 11:06 Jun 2008: Amritsar
After Breakfast free for leisure. Evening transfer to railway station to Catch Chhattisgarh Express and reach in Delhi on 07-Jun and catch Man gala Express to cochin at 0920 am and reach cochin on 9th Morning.”
12. Findings:
(a)As per Ext. A1 the opposite party has not agreed to provide air tickets from Kualumpur to Bangkok. In the absence of any specific undertaking on the part of the opposite party, the complainant is not entitled to get the amount which he had expended towards his traveling expenses from Kualalumpur to Bangkok on his own.
(b) The complainant could not participate in the Genting tour on the 3rd day of the tour on 29-05-2008. One full day was fixed for Genting tour. The missing of Genting theme park tour for what ever reasons is a serious lapse on the part of the opposite party for which they are answerable. It is to be noted that no specific reason has been stated by the opposite party for the same.
(c)Admittedly the complainant himself had made arrangements to travel from Kualalumpur to Bangkok. He opted to fly in a late flight and he could not participate in the city tour at Bangkok since. The opposite party can not be blamed for the lapse on the part of the complainant himself. The complainant stated that he and his family had to wait at the Delhi Airport for more than 3 hours. The opposite party stated that delay had been caused to identify the complainant and his family due to security reasons. We are not inclined to agree with the contentions of the opposite party because being a tour operator it was their bounden duty to make necessary arrangements to receive their customers in time.
(d) Admittedly the complainant could not enjoy the Amritsar city tour and Waga retreat since the train timing booked by the opposite party from Delhi was not conducive for the timings in Amritsar and Waga Boarder. The booking of the tickets were made much earlier as per Ext. A1, the opposite party should have gone through the railway time table to make these trips comfortably in which they failed.
(f). The opposite party ought to have made necessary arrangements for the complainant and his family to take rest for 7 hours since they were very well aware that they had booked a train which was late by 7 hours than the one stated in Ext. A1, to which no explanation is forthcoming.
(g). Admittedly the complainant and his family reached at the hotel in Koalammpur at 8.15 a.m. on 28-05-2008. But the opposite party arranged the hotel facility at 12 noon according to them in the hotel check out time is 12 noon. Being a tour conductor the opposite party should have known before hand of this and made arrangements.
(h). DW1 and 2 admitted during evidence that visa charges are included in the tour package. The complainant had to incur the visa charges for Thailand and Malasia. The opposite party is liable to refund the same as per Ext. A10, A10(a) A10 (b) and Ext. A11, A11 (a) and A11(b).
(i). As per Ext. A1 the opposite party had not agreed to provide an A/C car for travel of the complainant and his family for Waga Boarder visit. So the claim of the complainant is not sustainable in law.
13. According to the opposite party at the instance of the complainant they have issued Ext. A2 a dummy invoice for Rs. 2,07,750/- to claim excess money from his employer. The opposite party examined DWs 3 and 4 to substantiate the said contentions successfully. We need not commend on this issue it is out side the purview of this Forum, laches if any are to be decided elsewhere.
14. the Hon’ble National Consumer Disputes Redressal Commission in Cox and Kings (1) Pvt. Ltd. and other Vs. S.P. Putchala (Col) and another 2010 CTJ 1252 has held in para II as follows:
“On the other hand when people opt for such Tours they do have expectations and preferences about the specific places which they would like to visit and which are included in the itinerary. When, at the last minute they are unable to visit these places (in the case of Respondents Pompeii and places in London), it does cause both inconvenience and disappointment. Even in Dubai, because of miscommunication on the part of Emirates Airlines, it is a fact that the Respondents had to face inconvenience in connection with their visas and other formalities. Under these circumstances, the orders of the State Commission and earlier the District Forum directing the petitioners to compensate the Respondents for their deficiencies in service by paying a sum of Rs. 80,000/- is reasonable.”
15. The points raised by the parties have been duly considered and explained. Now arises the question of compensation and costs of the proceedings. We are of the view that a compensation of Rs. 50,000/- would adequately meet the ends of justice. However it is made clear that the complainant is liable to pay the amount as per Ext. A5 to the opposite party. The opposite party is also liable to refund the amounts as per ext. A10, A10(a) 10(b), 11 11(a) and 11(b) to the complainant. An exemplary costs of Rs. 1,000/- is also awarded.
16. In the result, we partly allow the complaint and direct as follows:
i. The complainant shall pay the amount as per Ext. A5 to the
opposite party.
ii. The opposite party shall refund the amount as per Exhibits
A10, 10(a), 10(b), 11, 11(a) and 11 (b)in Indian rupees to the complainant.
iii. The opposite party shall pay a compensation of Rs. 50,000/-
to the complainant for the reasons stated above
iv. The opposite party shall also pay a sum of Rs. 1,000/- as
costs of the proceedings to the complainant.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order, failing which the above amounts shall carry interest @ 12% p.a. till payment.
Pronounced in the open Forum on this the 22nd day of September 2012
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of Itinerary
A2 : Copy of invoice dt. 26/05/2008
A3 : Receipt dt. 30-05-2008
A4 : Lawyer notice dt.8/2008
A5 : Postal receipt
A6 : copy of A.D. card
A7 : Copy of flight details
A8 : copy of reservation tickect
A9 : Copy of statement
A10 : copy of bill dt.5/2008
A10(a) : copy of bill dt. 5/2008
A10(b) : Copy of bill dt.5/2008
A11 : Copy of bill dt. 27/05/2008
A11(a) : Copy of bill dt. 27/05/2008
A11(b) : Copy of bill dt. 27/05/2008
A12 : Copy of itinerary
A13 : Copy of receipt dt.23-05-2008
A14 : Copy of memorandum
dt.09-04-2009
A15 : Copy of receipt
A16 : Hotel and service voucher
dt.30-05-2008
A17 : Copy of Hotel and
service voucher
A18 : Hotel and service voucher
A19 : Advance hotel voucher
Opposite party’s Exhibits : :
Ext. B1 : True copy of resolution
B2 : True copy of letter
dt. 21-05-2008
B3 : Copy of itinerary
B4 : Copy of itinerary
B5 : Copy of cheque
B5(a) : details of cheque/ refund
reason for return
B6 : copy of letter dt. 10-09-2008
B7 : Copy of letter dt. 08/02/2010
X1 : Leave fare concession bill
X2 : Copy of Invoice
dt. 26-05-2008
X3 : Copy of letter dt. 23/05/2008
X4 : Copy of memorandum
Depositions:
PW1 : Jose Paul
DW1 : Sanjeev Kumar
DW2 : Joyachan
DW3 : M.J. Devanis
DW4 : K.K. Kurian
