State Consumer Disputes Redressal Commission
Cox & Kings Limited & Ors. vs Mukt Anand on 27 November, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/341/2018 ( Date of Filing : 06 Apr 2018 ) (Arisen out of Order Dated 10/01/2018 in Case No. Complaint Case No. CC/300/2015 of District Kolkata-I(North)) 1. Cox & Kings Limited & Ors. Regd. office at Turner Morrison Building, 16, Bank Street, Fort, Mumbai - 400 001. 2. Cox & Kings Ltd. Manager, 6, Little Russel Street, Kankaria Estate, Gr. Floor, Kolkata - 700 071. 3. Cox & Kings Ltd. Local officer, 7/3, Mandeville Garden, P.S. - Gariahat, Kolkata - 700 019. ...........Appellant(s) Versus 1. Mukt Anand Flat no. 7, 6, Maharaja Tagore Road, Dhakuria, Kolkata - 700 031. 2. Mohan Lal Bansal Flat no. 4, 6, Maharaja Tagore Road, Dhakuria, Kolkata - 700 031. ...........Respondent(s) BEFORE: HON'BLE MRS. Dipa Sen ( Maity ) PRESIDING MEMBER For the Appellant: Kaushik Saha, Advocate For the Respondent: Sri Gouranga gupta Roy ,, Advocate Dated : 27 Nov 2018 Final Order / Judgement
The instant appeal Under Section `15 of the C.P.Act 1986 is on behalf of the Opposite Parties with a prayer to set aside the final order / Judgment being order No. 17 dated 10.01.2018 passed by the Hon'ble D.C.D.R.F, Kolkata, Unit - 1 (North) in Consumer Complaint No. CC/300/2015. By that impugned order the Ld. District Forum allow the complaint lodged by Respondent/complainant Mr. Mukt Anand and allowed the complaint with a direction upon the OPs / Appellants to refund the amount of Rs.81,000/- (Rupees Eighty-one thousand) only within 30 days from the date of communication of the order otherwise the amount shall carry an interest @ 8% p.a. till full realization.
The Respondents herein being complainant lodged the complaint before the Ld. District Forum stating that for the purpose of visiting European Countries in the year 2014 Complainant No.1 has visited local office of 'Cox & King' and after having the primary knowledge and information booked their names for Europe Tour i.e. CCU enchanting Europe Tour Programme of 2014. The cost of the said tour was fixed by the OPs for twin sharing adult person as tourist as per person Rs.2,01,000/- (Rupees two lakhs one thousand) only. The Complainants paid Rs. 81,000/-(Rupees Eighty-one thousand) only through A/c payee cheque on 27.07.2014 and 06.08.2014 as advance booking amount of them for the said tour. At the time of booking Complainant was assured that group U.K. tours, Visa will be easily available by the Complainants from the concerned authority. On 12.08.2014, the OP No.3 has received the complainant's original passports for Group U.K. tourist visa purpose. Accordingly, on 03.09.2014 an interview was held by the concerned U.K. Authority for granting Group U.K.Tours Visa to visit Europe. But the Concerned authority has rejected their visa application as a result the Complainants compelled to cancel the said tour programme and thereafter, the Complainants visited times and requested the OP No.3 to refund the amount after deduction of the cancellation charges of the said tour, but the OPs did not take any steps for refund of the money, ultimately, the Complainant send a Lawyer's notice which was replied by the OPs. In spite of receiving the notice, the OPs did not refund the money for which he Complainants filed this case praying for direction upon the OPs to refund the Advance amount of Rs.81,000/- after deduction of the cancellation charges as well as compensation and litigation cost.
The Appellant being OPs by filing a Written Version denied the contention of the complaint petition. It was stated that dispute between the parties should have been decided through the mechanism of arbitration and the matter should be referred to the arbitrator for arbitration. The OP / Appellant stated that before booking the complainants were furnished with a copy of tour brochure, booking forms etc. and only after understanding all the contents of the booking condition, the Complainants signed the documents for himself and the Complainant No. 2 and it was declared by the Complainants that after understanding the terms and conditions of the said tour programme, they put their signatures. The visa application was rejected by the Consulate since they were not satisfied with the financial condition of the Complainants / Respondents. The OPs only agreed as a facilitator and have no role to play in the entire visa process. After receiving the letter from the Complainants the OP has replied and stated that there was no ground for the Complainants to claim the amount paid by them (The OPs cannot be held responsible for the visa rejection). The OPs stated that even after rejection of visa application, the Complainants had remedy of further appeal. The same was also mentioned in the visa refusal letter. However, the complainant instead of filing an appeal cancelled the tour and as per the cancellation policy in the agreed booking condition, agreed and accepted by the Complainant, the applicable cancellation charges were Rs.60,000/- (Rupees sixty thousand) only per person. Therefore, the OPs have no deficiency in service and OPs are not liable to pay Rs.81,000/- as claimed by the Complainants.
On the basis of the evidence on record and after hearing of both parties the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the OPs. Being aggrieved by the said order passed by the Ld. District Forum, Kolkata, Unit-1, OPs have preferred a appeal before the Commission.
Ld. Advocate, Mr. Kaushik Saha for the Appellant has submitted that the Ld. Forum below failed to consider the material and relevant fact that the mutually agreed contract between the parties categorically excluded responsibility of the Appellant with regard to the application for visa by the Complainant / Respondent. At the time of booking the Complainants were furnished with a copy of tour brochures, booking forms etc and only after reading and understanding all the contents, the Complainant No. 1 has signed for himself and for the other complainant No.2. The Respondents / Complainants are educated person and as such, there remains no speculation of pertaining to their ability of reading and understanding the subject contract before executing the same by putting their signatures without any objection. Therefore, the terms and conditions have binding effecet upon the parties.
Thee granting or rejection of Visa is the sole discretion of the Consulate and as no assurance was made by the Appellants/ Ops pertaining to granting / rejection of Visa from the concerned Embassy. U.K. Consulate rejected the Visa application of the Respondents owing to the financial condition of the Respondents for which they are not at all responsible and they have no deficiency of service regarding this. The Ld. Advocate and the Appellant again submitted that in this case the Respondents / Complainants have cancelled their tour within the clear 44 to 31 working days prior to the date of departure and as per the contract the appellant are entitled to levy the cancellation charges of Rs.60,000/- per person + GST @ 12.36% and considering the number of persons schedule to travel, the OPs /appellants are not liable to refund any amount. Forum below has failed to observe that as soon as there is a booking, the reservation of holiday rooms, air tickets etc. are required to be made. They have no deficiency in service and the impugned order should be set aside.
On the other side the Ld. Advocate for the Respondents argued that the appellant has deficiency in rendering service. The Respondents/Complainants submits that no U.K.Visa was issued to them. Under such compelling situation, the Appellant has prayed for cancellation and to refund their amount of Rs.81,000/- after deducting of cancellation charges for which the Complainant had to file this case before the Ld. District Forum.
The Appellant / Ops also submits that the terms and conditions where the Respondent had to put their signatures was not legible. Appellant / Ops did not take any active step for refund to the amount for which they have deficiency in service.
On the basis of the pleadings and arguments the following points came for adjudication:
Whether the travel agency / OPs Coks& Kings was responsible for non-obtaining Visa for the Complainants / Respondents?
Whether there was any deficiency in service on the part of the Appellant / OPs?
In answering the question No. 1, it is pertinent to mention that it is an admitted fact that the Complainants/Respondents have made a part payment of Rs.81,000/- for two of them. It appears from the clauses of 'How To Book' from page no. 81 that granting / rejection of Visa is the sole discretion of the Embassy / Consulate. It is also pertinent to have a look on page no. 82 and 83 from where it clearly appears that the Visa application was rejected on 17.09.2014 on some financial related ground of the Appellant. It is also an admitted fact that in spite of having remedy to appeal the Complainants/ Respondents did not apply for the same and only about 33 days prior to the departure of journey i.e. 22.09.2014 the Respondents/ Complainants applied for cancellation. As such, it clearly appears that the OPs/Appellants are not responsible for refusal of Visa.
In answer to question No.'2', it can be said that parties are bounded by the terms of the agreement, the Complainants were furnished with a copy of 2 Brochures, booking forms etc. It appears from the record that not only one page but all pages were duly signed by the Respondent No. 1 without making any objection. As such, the parties are bound to follow the condition of the agreement. In a case reported in AIR 1996 SC 2508 (Bharat Knitting Company Vs DHL Worldwide Express Courier Division of Air-freight Ltd.), in that case the Hon'ble Supreme Court has observed that as it is seen that when a person signs documents that contents certain contractual terms, as rightly pointed out by Mr. R.F.Nariman, Ld. Senior Counsel that normally parties are bound by such contract and when there is a specific terms in the contract the parties are bounded by the terms in the contracts. Therefore, in accordance with the terms and conditions of the agreement the Appellant cannot be held responsible for failure on the part of the securing Visa from U.K. Consulate. Further rejection of Visa the Complainant approached on several times to refund of their amounts. It appears from the records and on careful perusal of attached copy of terms and conditions page no. 81 that cancellation took place only from the time when written request reaches to the Company, the Respondents/Complainants approached before the OPs through a written letter only on 5th May,2015 and the OPs replied that letter on 13.05.2015 and on 04.06.2015. They have forfeited the amount deposited by the Complainant Rs.81,000/- as per terms and condition of the cancellation procedure and do not find any deficiency regarding their such act.
The OPs has stated in their cancellation manual that they are to book International Air ticket, Hotels as per the requirement of the Complainants/Respondents for that reason the cancellation charges for thetour is also high and on time basis. As per agreement cancellation charge for one person is Rs.60,000/- an OP/Respondent demanded another Rs.60,000/- for that purpose.
But considering the fact of the present case the Appellant/OPs are not allowed to take any other amount except Rs.81,000/- which is already with the OPs/Appellants.
In view of the above and on careful observation of the materials on record and having heard the Ld. Advocates, it appears that the Ld. District Forum has failed to consider that granting of Visa does not fall within the domain of travelling agency and either parties are bounded by the specific terms in the contract and Ld. District Forum has misdirected in appreciation the matter from real perception. In fact the Appellant is quite justified in forfeiting the amount and there was no deficiency on the part of the Appellant. The Ld. District Forum has committed an error by awarding compensation and litigation cost.
In view of the above the order of the Ld. District Forum is hereby set aside and the Appeal is allowed on contest without any cost. The Appellant are at liberty to withdraw the amount of Rs81,000/- and interest thereon by order No.03 dated 19.06.2018 from this Commission The Registrar of the Commission is directed to send a copy of the order to the District Consumer Disputes Redressal Forum, Kolkata, Unit-1 for information.
[HON'BLE MRS. Dipa Sen ( Maity )] PRESIDING MEMBER