National Consumer Disputes Redressal
Kesari Tours Pvt. Ltd. vs Prajesh Ulnnikrishnan Nair on 5 September, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1053 OF 2019 (Against the Order dated 30/01/2019 in Appeal No. 301/2017 of the State Commission Maharashtra) 1. KESARI TOURS PVT. LTD. REGD. OFFICE 1 TO 4A, KINGS CORNER CHS, OPP. VICTORIA CHURCH, L.J. ROAD, MAHIM, MUMBAI-400016 MAHARASHTRA ...........Petitioner(s) Versus 1. PRAJESH ULNNIKRISHNAN NAIR R/AT B/404, GLEN GATE CHS CLIFF AVENUE ROAD, HIRANANDANI GARDEN POWAI, MUMBAI-400076 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER
For the Petitioner : Mr. Debojyoti Bhattacharya, Advocate Mrs. Momota C. Bhattacharya, Adv. For the Respondent :
Dated : 05 Sep 2019 ORDER
HON'BLE MR. DINESH SINGH, MEMBER
1. We heard the learned counsel for the revision petitioner tour & travel co. (Kesari Tours Pvt. Ltd.), and perused the material on record.
2. The dispute relates to loss and injury caused to the complainant due to deficient services of the tour & travel co.
3. The rival contentions have been succinctly articulated by the State Commission in its impugned Order dated 30.01.2019:
Respondent/Complainant had planned to go to New Zealand alongwith his wife for honeymoon. He had planned his entire tour on his own and booked air tickets and made accommodation arrangement via online. However, he had no knowledge of taking visa of New Zealand. Hence he had approached Opponent for getting visa of New Zealand. He submitted all necessary documents including copy of air tickets and travel itinerary to Opponent. Accordingly, Opponent had obtained visa for Complainant and his wife. However, at the time of boarding at Singapore airport, Complainant and his wife were not allowed to board the flight going via Australia as they were not having transit visa of Australia. Complainant submitted that hence, at that time he was required to purchase a new air tickets for New Zealand directly from Singapore. As his program was delayed, on that ground he was also required to make expenditure for making new arrangement of his resident. It is the contention of Complainant that as Opponent had not taken their transit visa of Australia, he was required to make this expenditure. Hence, he filed complaint for recovery of amount of Rs.1,93,000/- against Opponent alongwith interest on that amount along with amount of Rs.2,72,500/- towards mental agony and cost of litigation.
2) Opponent contested complaint by filing written statement on record. They admitted that they had taken visa for Complainant and his wife of New Zealand as per requests made by Complainant. However, they specifically denied that they were knowing the air tickets purchased by Complainant and Complainant had given the same to them. They submitted that as they were not having knowledge that Complainant and his wife are going to New Zealand via Australia, they have not taken transit visa of Australia. They further submitted that for short stay at Australia airport no one is required to obtain transit visa. They submitted that as per request of complainant, they have already obtained visa of New Zealand for Complainant and his wife and as such, they have not given deficiency in service to Complainant. Hence, they submitted that complaint filed by the Complainant be dismissed.
(paras 1 and 2 of the State Commission's Order)
4. The District Forum heard both sides, appraised the evidence and vide its Order dated 12.01.2017 allowed the complaint:
REASONS
4) As to Point No. 1 & 2 :- There is no disputes that the complainant himself booked he air tickets and made arrangements of his stay. The complainant approached the opponent for visa processing. It is not disputed that the opponent done the visa processing after receiving the amount from the complainant. According to the complainant he had handed over all the documents required for visa to opponent including air tickets and tour itinerary. For visa purpose air tickets and tour itinerary is required. Unless these documents are submitted visa will not be issued. The opponent is the old tour company and it is expected to know all the visa procedure. Unless air tickets are booked, transit visa will not be issued by the concern embassy. Therefore the submission of opponent that air tickets and tour itinerary was not submitted the opponent cannot be accepted. As the opponent received the consideration from complainant, it was necessary for the opponent to make proper inquiry and guide the complainant properly. Due to negligence of opponent the complainant was detained at Singapore airport on the first night of his honeymoon. The complainant was required to book fresh air tickets for New Zealand thereby he incurred expenses of $2552. As there was delay the complainant has to make fresh arrangement for stay. The complainant incurred additional expenses due to negligence of opponent. Therefore the opponent is liable to compensate the complainant. According to complainant he has incurred addition expenses of Rs. 1,93,000/- the complainant has produced air tickets and hotel expenses payment. We think the evidence on record is sufficient to show the additional expenses of Rs. 1,93,000/- by the complainant. The opponent is liable to pay it to the complainant.
5) As the complainant was detained at Singapore airport on the first night of his honeymoon, the complainant suffered from mental agony. Therefore the complainant is entitled for compensation. The complainant has claimed compensation of Rs. 2,72,500/- towards mental agony. We think it is excessive claim. Compensation of Rs. 25,000/- will suffice the purpose. Besides this the complainant is entitled for litigation cost of Rs.10,000/. Hence, we proceed to pass the following order.
ORDER
1. Complaint is allowed.
2. The opponent is directed to pay Rs. 1,93,000/-. (Rupees One lakh Ninety three thousand only) to the complainant with interest at the rate of 9% per annum from the date of filing of the complaint i. e. 30th October, 2015 till its realization.
3. The opponent is further directed to pay compensation of Rs. 25,000/- (Rs. Twenty five thousand Only) to the complainant for mental agony.
4. The opponent is also directed to pay Rs. 10,000/- (Rs. Ten thousand Only) to the complainant as cost of litigation.
(paras 4 and 5 of the District Forum's Order) (emphasis supplied)
5. The tour & travel co. appealed in the State Commission. The State Commission heard both sides, appraised the evidence and vide its Order dated 30.01.2019 dismissed the appeal:
6) The short point involved in this case is of getting visa of New Zealand for Complainant and his wife. On perusal of documents on record, it has become clear that Complainant had asked Opponent to obtain visa for himself and his wife of New Zealand. On perusal of documents on record it appears that for that purpose Opponent had demanded several documents to Complainant alongwith copies of air tickets and tour itinerary. Hence, Complainant had given copies of air tickets and tour itinerary to Opponent. Hence, at the time of obtaining visa of Complainant and his wife Opponent had knowledge that Complainant is going to New Zealand from Singapore via Australia and Complainant and his wife will have short stay for three hours at Australia airport. As Opponent is expert in obtaining visa for their customers, Opponent must have knowledge that for that purpose Complainant and his wife will have to take transit visa of Australia. However, Opponent had not asked Complainant to obtain transit visa for himself and for his wife as he is going to stay at Australia while going from Singapore to New Zealand via Australia. As Complainant is layman he was not having knowledge that he will be required to obtain transit visa of Australia as he is staying Australia for short period of three hours. We are of the opinion that as Opponent was knowing that Complainant is staying alongwith his wife at Australia airport for period of three hours it was for Opponent to direct Complainant to take transit visa of Australia for himself and for his wife. However, Opponent had not given advice to Complainant. As Complainant and his wife were not having transit visa of Australia, they were detained at Singapore and not allowed to travel to New Zealand via Australia. Hence, Complainant was required to purchase tickets of New Zealand directly at eleventh hour. As he was delayed in his tour, he was also required to make expenditure for his accommodation. We are of the opinion that Complainant was required to make this expenditure additionally as he was not having transit visa of Australia. Although Opponent was expert in obtaining visa for his customer they had not taken transit visa of Australia for Complainant and his wife although they were knowing that Complainant and his wife is having short stay at Australia airport while going to New Zealand. We are of the opinion that the Ld. District Forum had rightly considered that because of fault of Opponent, Complainant was required to make this expenditure. Hence, the Ld. District Forum had rightly directed Opponent to pay amount of Rs.1,93,000/- to Complainant alongwith interest on that amount alongwith cost and compensation. Hence, we are of the opinion that the order passed by the Ld. District Forum is to be confirmed by dismissing this appeal. Hence, we proceed to pass the following order -
O R D E R
(i) Appeal No. 17 / 301 is herby dismissed.
(ii) The order passed by the Ld. District Forum, Central Mumbai in Consumer Complaint No. CC / 280 / 2015 on dtd. 12/01/2017 is hereby confirmed.
(para 6 of the State Commission's Order) (emphasis supplied)
6. The tour & travel co. has filed the instant revision petition before this Commission under section 21 (b) of the Act 1986 against the said Order dated 30.01.2019 of the State Commission.
7. We find the Orders dated 12.01.2017 of the District Forum and dated 30.01.2019 of the State Commission to be well-appraised and well-reasoned. The State Commission has concurred with the findings of the District Forum. We note in particular the appraisal made by the two fora, quoted in paras 4 and 5 above. On the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice.
8. The case has been appraised by both the fora below. The two fora have arrived at concurrent findings.
Within the meaning and scope of section 21(b) of the Act 1986, we find no grave error in appreciating the evidence by the two fora below as may cause to require de novo re-appreciation of the evidence in revision.
9. We, but, note that the facts of the case are simple, and unsavoury. The complainant availed the services of the tour & travel co. for getting visa for New Zealand for himself and his wife. He submitted all necessary documents including copies of air tickets to it. The complainant alongwith his wife had to travel from Singapore to New Zealand via Australia and had to have a short stay of about 3 hours in the airport at Australia. At the time of boarding at the airport at Singapore, the complainant and his wife were not allowed to board the flight to New Zealand as they were not having transit visa for Australia. They had to spend the entire night at the airport at Singapore. The complainant had to purchase air tickets for a direct flight to New Zealand. He had to undertake additional expenditure for making fresh arrangements for stay at New Zealand. He was put to trouble and delay, put to loss and injury.
10. It is admitted that the complainant availed services of the tour & travel co. for getting visa for New Zealand via Australia (the route and itinerary were clearly mentioned in the air tickets of the complainant and his wife, provided by the complainant to the tour & travel co.).
It is also admitted that the tour & travel co. charged Rs. 12,542/- from the complainant for its services.
11. We find clear deficiency in service within the meaning of section 2 (1) (g) and (o) of the Act 1986, and see no reason to interfere with the findings and the award made by the District Forum and as confirmed by the State Commission.
12. The Act 1986 is for "better protection of the interests of consumers", in recognizedly a fight amongst unequals. Its Statement of Objects and Reasons speaks of "speedy and simple redressal to consumer disputes".
The dispute relates to 2015, we are now in 2019.
We find this to be a plain and simple case of a well-established tour & travel co., with resources and wherewithal, on the one side, and an ordinary common consumer on the other side, with the tour & travel co., first, being deficient and negligent in not obtaining the requisite transit visa for Australia even after being informed that the complainant and his wife had to travel to New Zealand via Australia and even after receipt of the requisite documents including copies of air tickets from the complainant, then, not facilitating the complainant and his wife at the airport at Singapore, to assist them to get a direct flight to New Zealand, when the complainant contacted a functionary of the tour & travel co. [and the functionary even then (wrongly) stated that a transit visa for Australia is required only for stay of atleast 8 hours at the airport at Australia], then, indulging in protracted litigation, unsuccessfully, in, one, two, consumer protection fora, and then, coming before the third consumer protection forum (this Commission).
On 23.05.2019, at the request of learned counsel for the revision petitioner tour & travel co., the hearing on admission was adjourned to 12.07.2019.
On 12.07.2019, at the request of learned proxy counsel for the revision petitioner tour & travel co., the hearing on admission was adjourned to 06.08.2019.
On 06.08.2019, after hearing arguments of learned counsel for the revision petitioner tour & travel co., and after perusing the record, we deemed it appropriate that, in the facts and unusual specificities of the case, the entire decretal amount be deposited with the District Forum. Additionally, learned counsel for the revision petitioner tour & travel co. submitted, on instructions, that it would like to explore the possibility of a voluntary amicable equitable settlement. And the hearing on admission was adjourned to 27.08.2019.
On 27.08.2019, learned counsel for the revision petitioner tour & travel co. argued on admission (evidently, a voluntary amicable equitable settlement could not be arrived at).
We find that, before the third forum, i.e. this Commission, its case, after hearing the arguments and perusing the material on record, fails, on merit, at the admission stage itself.
It is quite evident that the tour & travel co., after being deficient in service, agitated, unsuccessfully, in one, two, consumer protection fora, and has now come before the third consumer protection forum (National Commission), using its resources and wherewithal for further troubling and adding to the travails of the ordinary common consumer, and unwarrantedly and unnecessarily wasting public time and monies.
This is not viewed favourably.
13. Considering the entirety of the facts and unsavoury specificities of the case, the revision petition is dismissed with stern advice of caution to the revision petitioner tour & travel co. (Kesari Tours Pvt. Ltd.) through imposition of cost of Rs. 1,00,000/- (rupees one lakh) to be paid to the complainant directly in his name by way of 'payee's a/c only' demand draft within four weeks of the pronouncement of this Order.
14. The District Forum's award, as contained in its Order dated 12.01.2017, and as confirmed by the State Commission vide its Order dated 30.01.2019, is sustained. It shall be complied with without further delay.
15. We may add that the duties / responsibilities of Director of a Company are laid-down in The Companies Act, 2013.
And we make it explicit that the travel & tour co. (juristic person) as well as its Directors (persons) as also its concerned functionaries (persons) are liable, individually, jointly, and severally. And the liability qua the consumer-complainant initiated the day the consumer-complainant made his payment to the travel & tour co. / its functionaries for availing its services, and it continues.
We are making this observation inter alia in reference to 'enforcement' under section 25(3) and 'penalties' under section 27(1) of the Act 1986.
16. The District Forum shall undertake execution as per the law if paras 13 and 14 above are not complied with.
17. Let a copy each of this Order be sent by the Registry to the District Forum and to the complainant within three days of its pronouncement.
18. So disposed.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER