State Consumer Disputes Redressal Commission
Sotc Travel Services Pvt.Ltd.,Mumbai. vs Dr.S.Ramu,Tanjore. & Another on 11 October, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
PRESENT: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER
F. A.No.48/2016
(Against the order made in C.C.No.82/2013 dated 23.02.2016 on the file of the
District Forum, Thanjavur.)
TUESDAY, THE 11th DAY OF OCTOBER 2022
SOTC Travel Service Private Limited,
Pre:4th Floor, RNA Corporate Park,
Bandra (E) Mumbai, India - 400 051,
(Formerly known as KUONI Travel(India)
Private Limited)
Having its registered office at
Now at-324, Dr.D.N.Road,
Fort, Mumbai - 400 001,
And Corp. Office at 8th Floor, Urmi Estate,
95 Ganpatrao Kadam Marg,
Lower Parel (W), Mumbai - 400 013. Appellant/2nd Opposite Party
-Vs-
1. Dr.S.Ramu,
S/o Thiru.Sivasamy,
No.11, Indira Nagar, 9th Cross,
Medical College Road,
Thanjavur - 613 007.. 1st Respondent/Complainant
2. Tmt.Chithra,
Temple Travels,
Near Ramanathan Hospital,
Thanjavur. 2nd Respondent/1st Opposite Party
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Counsel for Appellant-2/Opposite party-2 : Mr.R.Pandivel, Advocate.
Counsel for Respondent-1/Complainant : Mr.S.T.Sasitharan Tamilkani, Advocate.
Counsel for Respondent-2/Opposite Party-1 : Served Called Absent.
This appeal coming before us for final hearing on 20.09.2022 and upon
perusing the material records, this Commission made the following:
ORDER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER.
1. This appeal has been filed by the 2nd opposite party against the award passed by the District Consumer Disputes Redressal Forum, Thanjavur.
2. The facts of the case is as follows:
The first opposite party is the Agent of the second opposite party who is a Tour operator. The complainant booked three tickets to the world Tour Organized by the second opposite party in the year 2011. They paid Rs.63,000/- and the opposite party informed that the Tour Programme and particulars will be informed them shortly. But, no information was received by the complainant. Despite the steps taken by the complainant the opposite parties failed to arrange the tour and hence the complainant issued a notice to refund the amount. Since, there is no response he filed the complaint claiming refund of Rs.63,000/-, with interest 12% p.a. and Rs.2,00,000/- towards compensation for mental agony and Rs.5000/- towards cost of the proceedings.
3. The second opposite party filed their written version stating that the complainant booked tour Programme and paid Rs.63,000/-. But, it is false to allege that he was not informed about Tour programme. The complainant after knowing fully well about the 3 Tour programme, terms and conditions by receiving the pamphlets agreed for the same and paid the amount. He alone failed to produce relevant documents to get visa. And subsequently requested the opposite party to cancel the tickets. As per the terms the opposite party entitled to withhold the cancellation charges. Moreover, the jurisdiction as per the clause is vested exclusively to the courts at Mumbai and this Commission has got no jurisdiction. Hence, they prayed to dismiss the complaint.
4. The District Forum allowed the complaint in entirety, Aggrieved with the above order the appeal has been preferred by the second opposite party on the following:
Grounds : The District Forum order is erroneous and against law. The District Forum failed to note that the complainant alone is responsible for the cancellation for tour programme. As per the terms and conditions the jurisdiction of the Thanjavur District Commission is ousted hence the appeal may be allowed and to set aside the District Commission order.
5. We perused both sides written arguments.
6. Now the point for consideration is:
Whether the appeal is to be allowed or not?
Point: As stated earlier, the opposite parties admitted the receipt of Rs.63,000/- towards tour booking amount. It is also an admitted fact, the complainant and his family did not participate in the Tour programme. It is the case of the complainant that he was not informed about the tour programme such as date of leaving, place of leaving, time of leaving etc.,. But, in the opposite party version it has been stated that 4 after knowing the programme the amount was paid by the complainant. In this respect we perused the Booking Form Ex.A4. In the Booking Form the complainant agreed the following, "On behalf of the above person/s I/we have read the SOTC Tour Brochure and accept the Booking Conditions and agree to comply with the same".
and signed below. So, from the undertaking by the complainant it is evident that after knowing the tour programme he confirmed it and paid the booking charges. So, we cannot accept the contention of the complainant that he was not supplied with any information about the tour programme.
7. As per the conditions the opposite parties entitled to withhold some charges if the booking is cancelled. Though the opposite party contended that only the complainant cancelled the trip, no document is produced by them either before the District Commission or before this Commission. Till now the reason for the cancellation of tour schedule is not known and not proved to this Commission.
8. As the opposite party failed to prove that only because of the complainant, booking was cancelled and they are liable to pay the booking amount to the complainant. Similarly, the contention of the opposite parties that the courts at Mumbai alone has got exclusive jurisdiction is also is not tenable in law. It may be stated here that, for determining the territorial jurisdiction, to entertain and decide the complaint, the Consumer Foras are bound by the provisions of Section 11 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors.-I (2008) CPJ 404 (NC), 5 the principle of law, laid down, by the National Commission, was to the effect, that a clause of jurisdiction, by way of an agreement, between the parties, could not be made applicable, to the consumer complaints, filed before the Consumer Foras, as the Foras are not the Courts. It was further held, in the said case, that there is a difference between Section 11 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. Further, in Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)=VII (2011) SLT 371, the principle of law, laid down was that the restriction of jurisdiction to a particular Court, need not be given any importance in the circumstances of the case. In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D. Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the jurisdiction of the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the jurisdiction of a particular Court/Forum, and limiting the jurisdiction of a particular Court/Forum, could not be given any importance and the complaint could be filed, at a place, where a part of cause of action arose, according to Section 11 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case. So, the District Commission has got jurisdiction to entertain the complaint. 6
9. As per the above discussions the complainant wrongly stated that tour programme was not given to them against his admitted undertaking in Ex.A3. At the same time the opposite parties failed to prove their contention that the complainant alone requested for cancellation.
10. Under such circumstances, the finding of the District Commission that, the opposite parties are liable to refund the amount of Rs.63,000/- is found correct. And the award of interest is also acceptable to us. However, the District Commission granted Rs.2,00,000/- towards compensation for mental agony we are unable to accept this amount because the complainant wrongly stated that he even did not knowing the particulars of tour programme which is evidentially not correct. Further in Ex.A1 suit notice it has been clearly stated the tour programme is of the year 2011 and the Departure date is 11.06.2011. As per Ex.A3 the booking was made on 22.01.2011 but, the lawyer notice was sent only 17.12.2012 that is nearly after 18 months of this schedule Departure. No documents is produced by the complainant that he requested any particulars from the opposite parties and also requested refund amount in the meanwhile. And there is no pleading regarding mental agony except a bare statement. So, the award of Rs.2,00,000/- is too excessive and it is unsustainable. Hence, the appeal is partly allowed by setting aside the award of compensation of Rs.2,00,000/- alone and in other respect we confirmed the District Commission order. We also award further cost of Rs.5000/- in this appeal thus we answered the point accordingly. 7
11. In the result,
1. The appeal is partly allowed and the order of the District Commission, awarding a compensation of Rs.2,00,000/- is alone set aside.
2. In other respect the appeal is dismissed, and the order of District Commission, Thanjavur, made in C.C.No.82/2013, dated 23.02.2016 is hereby confirmed.
3. The appellant/2nd opposite party is directed to pay additional cost of Rs.5000/- to the 1st respondent/complainant in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by us on this the 11th day of October 2022.
Sd/-xxxxxxxxxxxxxxx Sd/-xxxxxxxxxxxxxx
S.KARUPPIAH, N. RAJASEKAR,
JUDICIAL MEMBER. PRESIDING JUDICIAL MEMBE
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Corrected