State Consumer Disputes Redressal Commission
Pioneer Aero Travels (Madras) Private ... vs A. Panchapakesan, Kuppam Beach Road, ... on 16 May, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
F.A.52 /2009 [Against order in C.C.300/2004 on the file of the DCDRF, Chennai (North)] DATED THIS THE 16th DAY OF MAY 2011 Pioneer Aero Travels ( Madras) Private Ltd., | Rep. by P. Murugan, | Appellant / Opposite Party G-10, Eldorado, | 112, Nungambakkam High Road, | Chennai 600 034. | Vs.
1. A. Panchapakesan, | S/o. Late A. Arunachalam, | |
2. P. Rukmani, | W/o. A. Panchapakesan, | Respondents / Complainants |
3. P. Satish Kumar, | S/o. A. Panchapakesan, | | All are residing at: | Old No.18A, New No.20, 1st Floor, | Central Government Employee CGE Housing Colony,| Kuppam Beach Road, Thiruvanmiyur, | Chennai 600 041. | The Respondents as complainants filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.8,899/- being the sum received in excess by the opposite party towards the hotel accommodation, to pay Rs.860/- being the excess incurred by the complainants unnecessarily towards their EC Clearance, to pay Rs.200/- towards the postal and other expenses incurred by the complainants owing to the delay by the opposite party, to pay Rs.2 lakhs towards compensation for the mental agony physical hardship and strain and to pay the cost. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.15.12.2008 in C.C.300/2004.
This appeal coming before us for hearing finally on 03.05.2011, upon hearing the arguments of the either counsels and perused the documents, Written Submissions of the appellant as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellant / O.P. : Mr.R.Parthiban, Advocate.
Counsel for the R1 & R2/ Complainants : M/s.V. Annalakshmi, Advocate.
For the R3 /Complainant : In Person.
M. THANIKACHALAM J, PRESIDENT
1. The opposite party is the appellant.
2. The respondents, as complainants, have approached the District Forum for the following reliefs namely:-
(i) to pay a sum of Rs.8,899/- being the sum received in excess by the opposite party towards the hotel accommodation;
(ii) to pay a sum of Rs.860/- being the expenses incurred by the complainants unnecessarily towards their EC Clearance;
(iii) to pay a sum of Rs.200/- towards the postal and other expenses incurred by the complainants owing to the delay by the opposite party;
(iv) to pay a sum of Rs.2,00,000/- towards compensation for the mental agony, physical hardship and strain; alleging as follows.
3. The complainants, in order to travel as tourist to Hong Kong, approached the opposite party for booking their air tickets and also to arrange their accommodation and accordingly air tickets were confirmed for 20.01.2004 and stay had been arranged from 21.01.2004 to 24.01.2004 at the Park Hotel, Hong Kong, for which, totally the complainants have paid a sum of Rs.88,000/-.
4. The air tickets were delivered on 20.01.2004 at 1 p.m. for the flight scheduled for 4 p.m. that is Air Lankan Airways. When the complainants attempted to board the flight, they were not allowed, for not obtaining Emigration Clearance from the authority concerned, for the complainants 2 & 3. In order to obtain temporary emigration clearance, the complainants have to spent a sum of Rs.860/-, which was also informed to the opposite party, who admitted the mistake. Because of the negligence and deficiency of service, the complainants were unable to embark on their trip on the same flight or on the same day, since the flight was full, for which, the opposite party is to be held responsible.
5. The opposite party undertaking to bear the cancellation charges, rescheduled the programme and obtained Air tickets by Cathay Pacific Airlines, confirming accommodation at Bishop Lei International Hotel by internet booking, commencing from 28.01.2004, demanding additional sum of Rs.1464/-. When there was altercation, the opposite party assaulted the first and second complainants, resulting police complaint also.
6. At Hong Kong, the hotel authorities informed, that only booking was done, amount was not paid, thereby complainants were compelled to pay a sum of HKD 1521, unnecessarily, despite the opposite party had collected the accommodation charges already, which they are bound to repay. As Travel Agent, the opposite party is bound by the code of ethics of the Travel Agents Association of India (Relations with the public), which they failed to follow, thereby complainants suffered untold sufferings and mental agony, for which, compensation is moderately estimated at Rs.2 lakhs.
Hence, the complaint.
7. The opposite party admitting the purchase of tickets for the complainants at first instance in Sri Lankan Airways as well as subsequently purchasing the ticket in the Cathay Pacific Airways, including the accommodation reservation as well receipt of the amount, resisted the case, contending that they have undertaken, to book tickets and hotel packages alone, and they were not asked to obtain emigration clearance [EC], paying any service charges and therefore, if the authorities have not allowed the complainants 2 & 3, for want of emigration clearance in the flight, that cannot be treated as deficiency in service, that they have not accepted the cancellation charges and in fact, when the first complainant sought for rebooking the tickets, the first complainant got annoyed and at the instance of the Police, the first complainant issued a cheque for Rs.1464/- as additional charge, which was not honoured, on the instruction given by the first party to Stop Payment, that the accommodation at Hong Kong was made by the complainants themselves, when the complainants have complained about the excess amount collected by the opposite party, they have paid a sum of Rs.3336/- by way of cheque dated 18.03.2004, deducting a sum of Rs.1464/-, which was due to the opposite party on the basis of the above said cheque, that their service was not included, with the emigration and therefore, if the complainants were unable to travel as originally scheduled, the opposite party cannot be held responsible for the consequential sufferings also if any, cannot be held responsible, thereby praying for the dismissal of the complaint, denying other averments also.
8. The District Forum by its cryptic order dated 15.12.2009, issued a direction as prayed for regarding the refund of the alleged excess amount and expenses, restricting the compensation alone at Rs.50,000/- instead of Rs.2 lakhs, thereby causing grievance, resulting this appeal.
9. The respondents/complainants proposed to travel as tourist to Hong Kong, for that, they approached the opposite party, for booking their air tickets and also to arrange their hotel accommodation. Accordingly for the above said purpose, admittedly a sum o f Rs.88,000/- was paid by the complainants, to the opposite party. As admitted by the complainants themselves, tickets were handed over though, it is said belatedly and accommodation was also reserved at Park Hotel, Hong Kong for the period 21.01.2004 to 24.01.2004.
But, unfortunately, when the complainants reached the Airport attempted to board the flight, complainants 2 & 3 were not permitted since no emigration clearance was obtained for them.
The attempt of the first complainant, to get temporary emigration clearance certificate, though ended successfully, they were unable to go to Hong Kong, in the same flight or in the next flight, for want of accommodation. Thus, the complainants were unable to got to Hong Kong as per the original schedule. For this, the complainants accused the opposite party, as if, they have committed negligence act as well as deficiency in service and on that basis alone, as consequential relief, damages were claimed, refunds were claimed. Therefore, it is for the complainants to make out a case, that they have requested the opposite party to obtain emigration clearance by entrusting the documents necessary, for the same, including tendering of the Passport as well paying necessary service charges for the same. To prove this, practically we have Nil evidence and we have contra pleadings, not taken cognizance by the District Forum unfortunately.
10. In the complaint itself, as seen from Para 4, their request was, for booking Air tickets and to arrange hotel accommodation, nothing more. It is also the case of the opposite party, that only for these two services, they were paid and they were not requested to obtain emigration certificate, producing the documents as well as paying the service charges, not under challenge.
Therefore, if the complainants 2 & 3 were not permitted to board in the flight for want of emigration clearance, the opposite party cannot be faulted, as incorrectly did by the District Forum. If really, the complainant had requested the opposite party to obtain emigration clearance, they should have pleaded so and what was the service charges paid and what are the documents given by them also. When the opposite parties had repeatedly said that even, the complainants have failed to produce the Passport for verification, it is not challenged. Therefore, for not allowing the complainants to get into the flight, for want of emigration certificate, the opposite party cannot be faulted, as if, they have committed negligence act, which was not properly considered by the District Forum.
11. The complainants had found fault, that the opposite party had committed negligent act or deficiency in service, in not obtaining emigration clearance. In the ordinary course, if so they would not have approached the opposite party, once again for the tickets and accommodation for the rescheduled programme and instead, they should have sought for refund of the money, as such questioning the conduct of the opposite party. Admittedly, the complainants once again approached the opposite party, for rebooking the tickets as well as accommodation for the journey on 27.1.2004.
Pursuant to the request, insisting extra payment of Rs.1464/-, the opposite party had purchased the tickets in Cathay Pacific Airliens and accommodation was also booked, at Bishop Lei International Hotel by internet booking, though the entire amount was not paid.
On the basis of the rebooking of the tickets, admittedly the complainants had been to Hong Kon and it appears, the hotel authorities have collected a sum of HKD 1521 towards the hotel accommodation, which is faulted legitimately, since it is not the case of the opposite party, that they have returned the accommodation charges already collected. Accommodation reserved for the stay of the complainants is, not in dispute and the dispute is only regarding the excess amount collected from the complainants. Therefore, if the excess amount collected by Bishop Lei International Hotel was not refunded, by the opposite party on demand, then only it can be faulted and we can order refund of the excess amount, which we will discuss infra that is regarding the first prayer.
12. As far as prayers 2 & 3 are concerned, it is the invitation of the complainants, and it has nothing to do with the alleged negligent act of the opposite party and therefore, the complainants are not entitled to claim either Rs.860/- as expenses incurred or Rs.200/- towards postal and other charges, which was not properly appreciated by the District Forum. Nowhere the complainants have stated, in the complaint as well as in the subsequent communication also, that the opposite party had undertaken to obtain emigration clearance and this being position, they cannot be faulted for not allowing the complainants, in Sri Lankan Airlines on the original date of schedule.
13. Admittedly, when the first complainant approached the opposite party for rebooking of the ticket, at the intervention of the police, based upon FIR or otherwise, the first complainant has issued a cheque for Rs.1464/- not in dispute, which is evidenced by the Xerox copy of the cheque also. It is not the case of the complainants, that the opposite party had encashed the cheque. It is the specific case of the opposite party, that the first complainant stopped the payment and this amount is due to them, not questioned by filing affidavit. Therefore, it is futile on the part of the complainants, to contend that the opposite party had agreed to bear all the cancellation charges or they have agreed to purchase the tickets, on the basis of the original payment namely Rs.88,000/- alone. If that is so, there would not have been any necessity for the first complainant to issue a cheque and the very fact, the cheque issued would go to show that the first complainant agreed to pay a sum ofRs.1464/- in addition to Rs.88,000/- already paid by them, to the opposite party and this amount should be taken into account while calculating the refund. When the complainants where at Hong Kong, they have informed the demand made by the Hotel and on return, the complainants have sent a letter requesting to refund of the excess amount as seen from Ex.A14, wherein also they have not agitated the alleged negligence, regarding non-obtaining of emigration clearance, which prevented the complainants from proceeding to the tour, as originally scheduled on 21.1.2004, whereas the first complainant requested the first opposite party to make the payment as applicable at the earliest without delay, further informing that the cancellation had taken place for the reasons best known to the opposite party as well as the first complainant, not disclosing. Pursuant to the requisition and reminder under Ex.A15, the opposite party paid a sum of Rs.3336/- by way of cheque, which is also admitted. Only thereafter many new things were raised in Ex.A16, by the second complainant, as if, they have incurred financial loss etc., In this communication, though the balance is claimed as Rs.8899/-, it is not known, how this calculation was made, since we do not have enough materials regarding the actual amount paid by the complainants, payable by the opposite party, for accommodation alone. In Ex.A2, calculation was arrived, probably on the basis of the rebooking, showing the balance of Rs.1465/- which was taken into account. Admittedly, using the Credit Card of Mr. Murugesh, Managing Director of the opposite party, accommodation was booked though entire amount was not paid, and what is that amount is not disclosed. Because of this reason alone, the first complainant requested the opposite party to pay the excess amount, as applicable, which was calculated, then deducting the amount payable by the complainants, to the opposite party, as per the cheque, the balance amount was paid, accepted without any protest, thereby settling the claim, not committing any deficiency, by the opposite party. The District Forum without considering all these things, and without recording the finding, how the opposite party had committed negligent act or deficiency in service, forgetting the fact, that obtaining emigration clearance, was not entrusted to the opposite party, unnecessarily taxed the opposite party, and from the said taxation, he should be relieved, for the reasons assigned by us supra.
14. In the Written Submission also, it is also not the case of the respondents/complainants, that they have requested the appellant/ opposite party to make arrangement for emigration clearance and it is said the entire episode could have been avoided if the opposite party had got the ECNR clearance or at least advised the respondents with regard to the same, thereby showing, the deficiency alleged against the opposite party is regarding ECNR. When this job was not entrusted to the opposite party, submitting the documents, there is no possibility for the opposite party to get ECNR and consequentially, the burden was upon the complainant to get ECNR, which is the cause for the subsequent problems. Thus, by going through the Written Submission also, we are unable to find out any negligent act on the part of the opposite party, since they have promptly repaid the amount when their mistake was pointed out, or when they were informed that the complainants were compelled to pay the hotel accommodation charges. Thus, the appeal is meritorious to be accepted.
15. Appeal is allowed, the order of the District Forum in C.C. No.300/2004, dt.15.12.2008 set aside, and the complaint is dismissed.
Considering the facts and circumstances of the case, there will be no order as to cost, throughout.
16. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellant /opposite party duly discharged, since appellant succeeded, and there is no need to retain the FDR.
J. JAYARAM M.THANIKACHALAM JUDICIAL MEMBER PRESIDENT