National Consumer Disputes Redressal
Cox & Kings Ltd. & Anr. vs Dr. Uday Ramchandra Naik & Anr. on 5 August, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1378 OF 2015 (Against the Order dated 02/02/2015 in Appeal No. 563/2009 of the State Commission Maharastra) 1. COX & KINGS LTD. & ANR. TURNER MORISON BUILDING 16, BANK STREET FORT, MUMBAI - 400023 MAHARASHTRA 2. NITIN THOMAS, REPRESENTATIVE, COX & KINGS LTD., UG 18, PUSHPAKUMJ, CENTRAL BAZAAR ROAD, RAMDASPETH, NAGPUR ...........Petitioner(s) Versus 1. DR. UDAY RAMCHANDRA NAIK & ANR. R/O ALASHI PLOT AKOLA, TAHSIL AKOLA MAHARASHTRA 2. SOU. BHAWNA UDAY NAIK, OCCUPATION HOUSEHOLD, R/O ALASHI PLOT AKOLA TAHSIL AKOLA MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Jitender Mehta, Advocate For the Respondent :
Dated : 05 Aug 2015 ORDER PER JUSTICE J.M. MALIK
1. The main controversy swirls round the question is, whether the petitioner, a travelling company, is entitled to forfeit Rs.50,000/- per customer i.e. Rs. one lakh in this case or Rs.40000/- i.e. Rs.20,000/- per customer is sufficient for that.
2. Counsel for the petitioners present. Arguments heard. Cox & Kings (India) Pvt. Ltd. -OP floated tour programme known as "Duniya Dekho, European Discovery Cash back Offer" on 18.01.2008. The Complainant Sh. Uday Ramchandra Naik and his wife Smt. Bhawna Uday Naik applied for the same. The total amount, which was to be paid, was in the sum of Rs.3,16,148/-. They paid the earnest money in the sum of Rs.20,000/- for each on 27.01.2008. The complainant paid rest of the amount in the sum of Rs.2,76,148/- on 14.02.2008. The complainant contended and the counsel for the OP/petitioner also admits that the OPs had given undertaking to arrange for the VISA for the above said tour programme. Counsel for the OPs/petitioners submits that they were to facilitate the said VISA and were not responsible for grant of the VISA. The complainants submitted the necessary documents and their booking for the aforesaid tour was confirmed by the OPs.
3. However, it transpired that the complainants could not get the VISA because they did not have the passports. The complainants filed the Consumer Complaint before the District Forum. The District Forum rendered the following order:-
"1) The respondent no. 1 & 2 tour operating company to refund to the petitioners no. 1 and 2 the deducted amount of Rs.1 lakh. An amount of Rs.5,000/- per person also to be given on account of inconvenience, physical and mental distress and financial loss etc. caused as well as Rs.500/- per person towards costs of the said case.
2) The said order to be complied with by the respondent nos. 1 and 2 jointly and separately "as early as possible" "without fail" by date 15.8.2009 and therefore the "Compliance Report" of the said order to be submitted to this Judicial Forum "without fail" by date 30.8.2009.
Otherwise, the respondent nos. 1 and 2, will be liable for penal proceedings under Section 27 of the Consumer Protection Act 1986.
In the same manner, from the date 16.8.2009, interest at the rate of 12 percent will also be payable on the said total payable amount of Rupees 1 lakh, 11 thousand till the date of payment, which please note".
4. Aggrieved by that order the petitioners filed an appeal before the State Commission. The State Commission partly allowed the appeal and passed the following order:-
"I. Appeal is partly allowed. II. The impugned order is modified and substituted as under.
The appellants/original O.P.s shall refund an amount of Rs.30,000/- per person i.e. Rs.60,000/- to the complainants/respondent herein and further to pay them compensation of Rs.5,000/- and cost of Rs.500/-. They shall pay the said amounts to complainants/respondents herein with interest at the rate of 12% p.a. from the date of complaint i.e. from 17/12/2008 till realization.
No order as to costs in appeal."
5. We have heard the counsel for the petitioners. He submits that the complainants did not have the Passports till 31.03.2008. Documents were given by the complainants in the month of April only. In the absence of the valid Passports, OPs cannot be held responsible for rejection of VISA. He also submits that they render services and guidance to procure the VISA, yet, they cannot be held responsible for non-submission of proper documents, by no stretch of imagination. Counsel for the petitioners has also invited our attention towards the fact that they are entitled to Rs.50,000/- as per their pamphlet mentioned under the caption "HOW TO BOOK EUROPE' 08". It mentions:-
WHEN A CANCELLATION IS MADE CANCELLATION CHARGES PER PERSON Clear 45 working days or more prior to the date of departure of the Tour or for non-payment of the balance Tour Cost.
Deposit Amount Clear 44 to 31 working days prior to the date of departure of the Tour Rs.30,000/-
Clear 30 to 16 working days prior to the date of departure of the Tour Rs.40,000/-
Clear 15 to 12 working days prior to the date of departure of the Tour Rs.50,000/-
Less than 12 clear working days prior to the date of departure of the Tour 100% of the Tour cost
6. Counsel for the petitioners submits that they are entitled to cancellation amount in the sum of Rs.50,000/- for each of the person. He further submits that there was International Booking and therefore, the complainants are entitled to Rs.50,000/- each. He further submits that it is not their responsibility to have valid passports as per the terms and conditions. Counsel for the petitioners further submits that the State Commission has wrongly observed:-
"However, the OPs have not brought any evidence on record to show that under which cancellation policy have they deducted Rs.50,000/- per person as cancellation charges. Perusal of Booking Forum- 2008 duly filled by the complainant reflects "Kindly booked me/us as per the details filled on this form. I am forwarding the sum of Rs.20,000/- per person as non refundable interest free deposit (listed below) which shall be forfeited in the event of cancellation of the tour by me/us being unable to travel due to any reason whatsoever and shall not dispute the forfeiture."
It is also pointed out that the Court of Akola has no jurisdiction. As a matter of fact, jurisdiction lies with the Nagpur District Forum as they have got no working place at Akola.
7. All these arguments have left no impression upon us. It clearly goes to show that the petitioners are pursuing their duties in a negligent and arbitrary way. First and foremost duty casts upon them is to find out whether their customers have got the Passports or not. It clearly goes to show that they are not vigilant. They are prompt in receiving the money but at the same time they do not care to see the documents as such. No explanation is forthcoming as to why the OPs did not check the Passports of the Complainants. The forfeiture of the amount in the sum of Rs.50,000/- each, is unreasonable, unconscionable and unjust. The Complainants are not to grab the money of their customers for no fault of them. This is an unfair trade practice. The Consumer Commission will never desire to give undue enrichment to the service providers. Moreover, there is not even an iota of evidence, which may go to show that due to the mistake on the part of the complainants, the OPs had to suffer a sum of Rs.1,00,000/-. The order passed by the State Commission is correct and does not suffer from any flaw. Dismissed.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER