State Consumer Disputes Redressal Commission
Thomas Cook India Ltd. vs Sh. R.K. Jain & Ors. on 12 July, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 12.07.2013 First Appeal No-614/2011 (Arising out of the order dated 08.09.2011 passed by the District Consumer Disputes Redressal Forum, Kasturba Gandhi Marg, New Delhi, in Complaint Case no. 1243/2008) IN THE MATTER OF:- Thomas Cook India Ltd. Through Mr. Rakesh Bawa, Branch Manager, C-33, Ist Floor, Inner Circle, Connaught Place, New Delhi-110001 Having its Registered Office at Thomas Cook Building, 324, Dr. D.N.Road, Fort, Mumbai-400001 .Appellant VERSUS 1. Sh. R.k.Jain S/o Sh. M.R.Jain 2. Mrs. Sarita Jain W/o Sh. R.K.Jain 3. Sh.Ankur Jain S/o Sh.R.K.Jain (All r/o D-375, Anand Vihar, Delhi-110092) 4. Sh. Anil Gupta Travel Agent, Thomas Cook India Ltd. C-33, Ist Floor, Inner Circle Connaught Place, New Delhi-110001 Respondents CORAM : S.A.Siddiqui - Member
(Judicial) S.C.Jain - Member
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not?
Yes S.C.Jain , Member Judgment
1) These two appeals have arised from the same order passed on 08.09.2011 in complaint case no. 1243/08 by District Consumer Disputes Redressal Forum, New Delhi. The appeal FA-614/2011 has been filed by the appellant M/s Thomas Cook India Ltd. who was OP-3 in the above referred Complaint Case and Appeal number FA-12/65 have been filed by the appellant Sh. Anil Gupta, who is travel agent of Thomas Cook India Ltd. and was OP-1 in the above referred complaint case. These two appeals have been filed by the appellant separately who were OP-1 and OP-3 jointly with OP-2 Sh. Rakesh Bawa, Branch Manager of Thomas Cook India Ltd. The facts of both the appeals and the grounds taken by both the appellants are the same accordingly these two appeals are decided by this common order.
2) The District Forum vide their order dt.
08.09.2011 directed the appellants to pay an amount of Rs. 1,00,000/- as compensation for harassment, metal agony alongwith Rs. 75,000/- for providing deficient services specially on account of not guiding the complainant properly in applying visa in time for Sh. Akash Jain and also awarded Rs. 25,000/- towards litigation charges.
3) The brief facts of the case are that one of the son of the respondent-1/complainant-1 was pursuing his L.L.M. study at Cambridge U.K. and his convocation ceremony was fixed there for 28.06.2008 and with the purpose of attending the convocation ceremony of his son the respondent-1/complainant-1 alongwith whole family i.e. the respondent-2 and respondent-3 decided to visit UK alongwith other places/countries and as they had thought of visiting the foreign countries for the first time and as they were not the frequent flyers, they decided to engage a dependent tour operator and they approached a branch of Thomas Cook India Ltd. at Connaught Place, New Delhi. And there they came in contact with Sh. Rakesh Bawa Branch Manager of the Company who told the respondents/complainants that they have presence all over the globe and assured them for the best comforts during the entire tour and assured them that their tour will be very successful as they are the renounced tour operators throughout of the world and shall also arrange all the booking of every type and shall undertake to provide all type of services including getting visa etc.
4) On assurances given by the appellant, the respondent/complainant booked in one of the tour of the appellant/OP to Europe i.e. European Extravaganza for the duration 13.06.2008 to 27.06.2008 and paid an initial amount of Rs. 45,000/- vide cheque bearing no. 065225 dt. 24.01.2008 in favour of M/s Thomas Cook India Ltd. and made it clear to them right from the booking the reason of their choosing the said tour and told the appellant that it must be organizing in such a manner so their elder son Sh. Aakash Jain who is studying in Cambridge, U.K. at that particular point of time for the purpose of doing his L.L.M. shall come to Rome, Vatican city on the inception of the tour and accompany the whole tour and after reaching London, the complainant/respondent including Sh. Aakash Jain shall depart for attending convocation ceremony of Sh. Aakash Jain in Cambridge UK on 28.06.2008 and from there they shall come back to India via Dubai on 21.07.2008.
5) The appellant/OP assured the respondents/complainants that there would not be any problem in materialising the said schedule/plan. The respondents/complainants completed all the necessary formalities and handed over all the documents/papers etc. alongwith the required fees as was asked for by the appellant/OP well in time to them. The respondents/complainants had stated that they had always gone by the advice of the appellant/OP step by step only for the purpose of their convenience in fulfilling all the necessary requirements for the said trip. The respondents/complainants had inquired from the appellants/OP several times whether the things are going right and whether their son Sh. Aakash Jain would get his visa for required destination in time to which the appellant/OP always replied in the affirmative and they seemed very complacent about everything and told the respondents/complainants that they have their representatives throughout the world and your son Akash will not find any problem in getting the visa and assured the respondents/complainants that they need not to worry about their visas alongwith the visa of their son at London and told them that they will not find any problem on this count.
6) The respondents/complainants further stated in their complaint that inspite of all the assurances the appellant/OP did not apply for the visa of their son in London well in time i.e. until the end of April, 2008 and by that time it has been too late for Sh. Aakash Jain to apply for Schengen Visa and when Sh. Aakash Jain inquired about Visa from Italian Embassy establish there in UK, Embassy told that he need to fix his appointment before at least two months in advance for getting the visa specially during this period when most of the people flow to these destination for the purpose of enjoying their vacation and that they dont have any more dates spare to give him for the coming months of May and June respectively, but when this fact was communicated to the appellant/OP they even at that stage assured the respondents/complainants that they will manage the same but all in vain. Sh. Akash Jain could not get visa from Italian embassy established in UK, rather appellant/OP told the respondents/complainants to persuade Sh. Aakash Jain to stay there in London for sometime with his friends as he shall be missing the company of their parents during the tour due to none availability of visa.
7) The appellant/OP had booked the tour of the respondent/complainant from 13.06.2008 to 27.06.2008 so that they may be joined by Sh. Aakash Jain in London and can attending convocation ceremony which was scheduled for 28.06.2008 and after that on 29.06.2008 the respondents/complainants alongwith Sh. Aakash Jain had to come India via Dubai on 01.07.2008, and respondents/complainants made full payment to appellants/OPs of all the passengers, but this schedule was also not adhered by the appellant/OP and they rescheduled the date from 13.06.2008 to 18.06.2008 which caused lot of humiliation to the respondents/complainants and all their plans were shattered and they missed important destination of the trip i.e. Rome, Italy, Vetican, Austria, Mount Titles in Switzerland etc. Since the dates were clashing with Sh. Aakash Jains convocation ceremony which they could not afford to miss at any cost.
The respondent/complainant due to re-scheduling of the trip had to miss considerable five days out of 17 days trip and had to spend additional money on staying at Cambridge without any purpose which cost them around 2,000 Pounds.
8) On representations by the respondents/complainants to appellant/OP for compensating them for five days short trip as well as depriving their son Sh. Aakash to accompany them and for making additional expenditure on the stay in UK the appellant/OP gave a reduction of only Euro 500 to the complainant for missing part of the tour i.e. Italy & Austria and told them to pay a total amount of Rs. 21,000/- at the rate of Rs. 7,000/- per person towards rescheduling of the dates from 13.06.2008 to 18.06.2008.
9) Aggrieved by the meager refund of the amount the respondent/complainant filed the complaint before the district forum and the district forum has passed the earlier mentioned order in the complaint case that is what brought the appellant/OP in appeal before this Commission.
10) Registered notice under AD cover was sent to the respondents/complainants, who appeared and filed their reply to the appeal, and contested their case. Arguments of both the parties heard. File perused.
11) Grounds taken by the appellant was that no visa fees/charges were charged with respect to Sh. Aakash Jain and they were not liable for not arranging the visa for Sh. Aakash Jain from the Italian Embassy situated in UK and they had very well mentioned in the terms and conditions for booking the ticket clearly:-
The company will not be responsible for none issuance of visa due to receipt of incomplete/delayed document from the client. It is a possibility that the consulate may ask the passenger to appear for a personal interview. This is at the sole discretion of the consultate/authorities.
12) In this regard it is to be seen that the appellant had taken entire booking charges at one go for the tour package which included everything. During the course of arguments the Commission had specifically made a query from the Counsel of the appellant whether any visa charges were taken from the complainant/respondent or not, to that counsel for the appellant had specifically answered the same in negative. It means that no visa fee/charges have been taken by the appellant separately from the respondent/complainant/other members of the group. But it Para No. V & VII at page No. 6-7 of the appeal it has been clearly admitted by the appellant that the appellant began the process of visa formalities and had obtained the same well in advance on 09.06.2008 for the passengers who had to board flight from New Delhi. The above facts contradicted the stand taken by the appellant itself. When the appellant had completed all the formalities themselves for getting the visa for the persons who had to board the flight from New Delhi then they cannot absolve themselves from the duty of arranging visa for Sh. Aakash Jain at UK when the appellant had charged 1,885 Euros for each of the passengers including Sh. Aakash Jain apart from the air tickets.
13) The next ground taken by the appellant is that while booking the tour it was specifically mentioned that Mr. Akash Jain to join direct from Rome as living in UK, if visa not granted and unable to take tour no cancellation charges.
14) This ground also contradicted the stand taken by the appellant, as the same clearly shows that if visa was not granted to Sh.
Akash Jain, no cancellation charges was to be taken from him and further more it is clear that Sh. Akash jain was to join the tour direct from Rome. It is highly improbable when the complainants choose such a brand tour operator like appellant which has reputation throughout the globe, even then the complainant had to bear the trauma of taking entire formalities of passport, visa etc. at their own and further more when the complainant choose the said tour through agent of appellant i.e. respondent-4 herein. As per the terms and conditions also the appellant cannot absolves themselves for none issuance of visa only on the basis of none receipt of complete documents or delay in providing the documents, whereas the respondent/complainant had provided all the required documents very much well in time to the appellant.
15) The appellant had further raised the ground that the respondents/complainants at their own volition opted for a tour deviation to UK (London) but this argument also cannot stand as the appellant in number of Paras had admitted that the complainant had to attend the convocation ceremony of Sh. Aakash Jain at Cambridge, UK and had arranged tour dates as requested by the complainant/respondent. Next ground of the appellant is that it has provided the necessary documents like the tour booking certificate to Sh. Aakash Jain enabling him to apply for the necessary visa for the tour which they have mentioned in Para 6 of their appeal. As regards this ground of the appellant is concerned the appellant had miserably failed to file any proof as to by what means they provided the said documents to Sh. Akash Jain and in absence of the same the said ground of the appellant is liable to be rejected.
16) In another ground taken by the appellant they have stated that the complainant themselves adopted not to travel on the original departure dates i.e. 13.06.2008 and decided to travel on 18.06.2008. This ground of the appellant is also not sustainable because from the record it appears that the appellant could not get the visa of many passengers by the date of departure or by 09.06.2008 when the visas of the respondent/complainant were obtained by them and as the tour was compact one for a number of passengers and without visa to all the passengers it was not possible to start the tour on the original departure date and that is why they rescheduled the departure on 18.06.2008 instead of 13.06.2008 and the appellant cannot take benefits of their own deficiency. No clue was submitted by the appellant for change of dates opted by the complainants and the respondents/complainants were at the mercy and were entirely dependent upon the appellant and its agent as they had to join the convocation ceremony of Sh. Aakash Jain in Cambridge, UK which they could not miss at any cost and as there was no other alternative at that time, the respondents/complainants joined the tour starting from 18.06.2008.
17) In another ground the appellant had stated that they gave deduction of 500 Euros to the complainant for missing part of the tour on account of their specially amended itinerary but in this connection we have observed that if the tour was missed on account of the fault of the respondents/complainants then why the appellant had offered deduction of 500 Euros to the respondent/complainant which clearly shows that the appellant had committed wrong and had provided deficient services to the respondents/complainants.
18) The appellant had relied upon the Judgment of Honble Supreme Court in the case titled Ravneet Singh Bagga V/s K.L.M. Royal Dutch Airlines & Another (2000) I SCC 66 where Honble Supreme Court has held that the deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance which is performed by a persons in pursuance of a contract or otherwise in relation to any services. But this Judgment goes against the appellant themselves because the above discussion clearly shows that the appellant had committed deficiency in service and even provided inadequate and substandard services as were promised, due to which the respondents/complainants had to suffer grave harassment, trauma alongwith financial loses.
For the purpose of consumer Protection Act, the word compensation has a wide connotation as has been provided by the Supreme Court in Ghaziabad Development Authority V/s Balbir Singh (2004) 7 CLD 861(SC). The word compensation appearing in section 14(i) (d) of the Act has been explained by the Supreme Court as under:-
The word compensation is of a very wide connotation.
It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The commission/forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
19) Accordingly the District Forum, New Delhi had rightly allowed the complaint of the complainant and we find no infirmity or illegality in the order passed by the District Forum, New Delhi and the order does not call for any interference.
20) Accordingly the appeal is dismissed and the order of the District Forum New Delhi passed in Complaint Case No. 1213/2008 is confirmed.
No order as to cost.
21) Copy of the order be supplied to the parties free of cost as per law and case file be consigned to record room.
22) FDR if any deposited by the appellant be released as per rules.
Appeal number FA-65/12, Sh. Anil Gupta V/s Sh. R.K.Jain & Ors.
ORDER The appeal number FA-65/12 has been filed by Sh. Anil Gupta who was OP-1 in complaint case number CC-1243/08 filed at District Consumer Disputes Redressal Forum, New Delhi, as this appeal has also been filed against the same order delivered in the same complaint case number 1243/08, the appeal against which has been decided above and the facts of appeal number FA-65/12 are similar to the facts of appeal number FA-614/11.
The appeal number FA-65/12 is accordingly also dismissed and order of the District Forum, New Delhi passed in Complaint Case No. 1243/08 is confirmed. No order as to cost.
23) Copy of the order passed in appeal number FA-614/11 be placed in the file pertaining to appeal number FA-65/12 and copy be also supplied to the parties free of cost as per law and case file be consigned to record room.
24) FDR if any deposited by the appellant be released to the appellants as per rules.
(S.A.Siddiqui) Member (Judicial) (S.C.Jain) Member fatima