State Consumer Disputes Redressal Commission
Ms. Maria Margarida De Noronha Tavora E ... vs Travaco Holidays Pvt. Ltd., on 10 November, 2014
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA C.C. No.07/2014 1. Ms. Maria Margarida de Noronha Tavora e Costa, major of age, business, Indian National r/o Raia, Salcete, Goa. 2.Mr.Luis Tavora major of age, business, Indian National r/o H. No.22, Viegas Vaddo, Arpora, Bardez, Goa 3.Mrs. Judith Tavora, major of age, business, Indian National r/o H. No.22, Viegas Vaddo, Arpora, Bardez, Goa 4.Mr. Arun Aggarwal, major of age, business, Indian National r/o 6-3-659/3, Kapadia Lane, Somajiguda, Hyderabad 5.Mrs. Maria Ana Aggarwal, major of age, business, Indian National r/o 6-3-659/3, Kapadia Lane, Somajiguda, Hyderabad Complainants v/s 1.Travaco Holidays Pvt. Ltd., Through its Managing Director Mr. Bruno Gomindes, With office at 6#, Rangavi Chambers, Opp. M.M.C. Building, Margao, Goa 403 601 2. Thomas Cook (India) Ltd., A travel Agency With office at 3rd Floor, OSIA Mall, Near SGPDA Market, Margao, Goa 403 601. Opposite Parties Complainants are represented by Adv. Shri A. DSilva Opposite Party No. 1 is represented by Adv. Shri C. A. Coutinho Opposite Party No. 2 is represented by Adv. Shri N. G. Kamat Coram: Shri Justice N.A. Britto, President. Shri Jagdish Prabhudessai, Member Dated: 10/11/2014 ORDER
[Per Shri Justice N.A. Britto, President] By this consumer complaint, the Complainants seek to recover from the Opposite Parties, a sum of Rs.15,09,290.12 by way of loss, allegedly sustained by them, and Rs.10,00,000/- by way of compensation, on account of their cruise vacation being shortened by 8 days.
2. Some more facts are required to be stated, though not pleaded, to dispose off this complaint.
3. A group of 13, including the Complainants, Shri Satyendra Patel and his family and advocate Shri F. Tavora, brother of Complainant Nos.1 and 2 and his family, decided to go on a East Mediterranean Cruise holiday, motivated by adv. Shri F. Tavora. In the course of the inquiries, they stumbled on Tirun Travel Marketing, Mumbai, who were selling european cruise holidays to indians; and the Complainants contacted Ms. Gia Lawyer, Cruise Counsellor of Tirun Travel Marketing and the said Ms. Gia Lawyer by email dated 15/11/12 informed advocate Shri F. Tavora the itineraries of various cruises including by cruise ship `The Serenade of the Seas organized by Royal Carribean International Company. By letter dated 17/11/12 advocate Shri F. Tavora informed Ms. Gia Lawyer of Tirun Travel Marketing that the Serenade of the Seas departing from Barcelona, Spain, on 19th May, 2013 was emerging as a popular choice among the group members and asked for their best quotes, with discounts, etc. The cruise itinerary of 12 nights East Mediterranean tour by Serenades of the Sea, was as follows:
Date Ports of Call Arv Dep Activity Sun 19 May 2013 Barcelona, Spain 05.00PM Boarding Mon 20 May 2013 Villefranche (Nice), France 09.00AM 06.00PM Tendered Tue 21 May 2013 Livorno (Florence), Italy 07.00AM 07.00PM Docked Wed 22 May 2013 Rome (Civitavecchia), Italy 07.00AM 07.00PM Docked Thu 23 May 2013 Cruising Cruising Fri 24 May 2013 Cruising Cruising Sat 25 May 2013 Athens(Piraeus),Greece 06.00AM 06.00PM Docked Sun 26 May 2013 Kusadasi (Ephesus), Turkey 08.00AM 07.00PM Docked Mon 27 May 2013 Santorini, Greece 07.00AM 06.00PM Boarding Tue 28 May 2013 Cruising Cruising Wed 29 May 2013 Naples (Salemo), Italy 07.00AM 07.00PM Docked Thu 30 May 2013 Cruising Cruising Fri 31 May 2013 Barcelona, Spain 06.00AM
4. The Complainant No.1 and adv. Shri Tavora were also the lead members of the group and they came to be advised by Ms. Gia Lawyer to contact the local representative of Tirun Travel Marketing, OP No.1, for further assistance in the matter, since the Complainants were based in Goa and as such would find it convenient to obtain information and other assistance from OP No.1, who was based in Goa.
5. Tirun Travel Marketing are the principal agents in India of Royal Carribean Company, the organizers of the tour by their ship known as Serenade of the Seas, while OP No.2, having their registered office at Mumbai and branch office at Margao, Goa, are the agents of Tirun Travel Marketing, and, OP No.1 is the franchisee of OP No.2. This position is accepted by all the parties.
6. Accordingly, the Complainants and ors. approached one Mrs. Dorothy Albuquerque of OP No.1 and she in turn sent an email to Complainant No.1 giving the itinerary cost and other details concerning the said tour, including the details as regards visas required to be obtained, namely, a multiple entry Schengen visa. In the said email dated 21/11/12 Complainant No.1 was informed that:
It is the guests responsibility to identity and to obtain the necessary visas before commencing their cruise itinerary. As a ready reckoner and based on information available with us you may refer to the attached visa documents for information as appropriate. However, current and up-to-date visa information is best sourced from the Embassy/Consulate of the country proposed to be visited, and neither, Thomas Cook, nor the Cruise Line are to be held responsible for visa procurement and rules and regulations of various countries to be visited on your cruise ship itinerary. It is the sole responsibility of the guests to identify and obtain all necessary travel documents and have them available when necessary. These appropriate valid documents such as passports and visas are required for boarding the ship and entry into the country to be visited on the guests cruise. Guests who do not possess proper documentation may be prevented from boarding the ship or entering the country to be visited on their cruise and may be subject to fines . No refund will be given to individuals who fail to bring proper documentation.
7. On the same day i.e. 21/11/2012 advocate Shri Tavora, one of the lead members and the motivator of the group, was also conveyed the same information by Mrs. Dorothy Albuquerque of OP No.1 as regards the itinerary, costing, cost breakup, requirements of multiple entry Schengen visas, etc. By another letter dated 26/11/2012, the same information was conveyed to the said Satyendra Patel, and, by another letter dated 27/11/2012, (copy at page 128) the said Mrs. Dorothy of OP No.1 informed advocate Shri Tavora, the Complainant Nos. 1 & 2 as well as the said Satyendra Patel that they should check their passports validity as they were required to be submitted to them and that visas are required to be obtained accordingly and assistance would be provided. It was also made clear that inorder to board the ship a valid passport would be required for travel, a passport which would not expire within 6 months of the completion date of sailing, and, as regards visa it was made clear that multiple Schengen visa would be required. Again, by email dated 29/11/2012, (copy at page 138) the said Mrs. Dorothy of OP No.1 informed the Complainants and others about the payment details, family wise, and also that visa was required to be obtained accordingly, and all assistance would be provided. (copy at page 138; emphasis supplied).
8. The Complainants and others booked the cruise tour through OP No.1 with OP No.2. The Complainants and others filled in what are known as FIT (Fixed Incentive Travel) booking forms, one per family, which were completed on 4/12/12 with terms and conditions of the said tour and one of the conditions was that:
11. All disputes/ complaints with respect to these terms and conditions and the tour and services shall be subject to the jurisdiction of courts at Mumbai only.
It was made clear that visa fees were not included in the tour cost. It was also made clear that each cruise line is governed by their terms and conditions, mentioned in their respective brochures and website which would be in effect once the booking form was signed. Clients were also informed that they were required to possess a valid passport and visa.
9. The Complainant No.1 duly signed the said FIT form stating that she had read and accepted the booking on conditions mentioned therein on her behalf as well as on behalf of the persons mentioned therein.
10. By email dated 18/02/2013 addressed to Shri Satyendra Patel, with copy to advocate Shri Tavora, (copy at page 146) certain queries raised by Mr. Patel were answered and they were informed that only one multiple entry Schengen visa was required for Schengen countries and for Turkey a landing card would be provided. They were further informed that they would be informed in case any visa requirements had changed and they would be updated.
11. By email dated 26/02/2013 the said Satyendra S. Patel asked Mrs. Dorothy, OP No.1, about the visa charges, their service charges and whether they could obtain one without their visit to the office of the Consulate, etc., and, by reply email dated 27/02/2013 the said Shri Satyendra S. Patel, was informed by OP No.1 that the visa fees would be Rs.9,210/- per person including service charges and the time taken would be 8 to 12 days.
Subsequently, at the request of Shri Satyendra S. Patel, breakup charges were conveyed to him, and, by another email dated 2/03/2013 the said Satyendra S. Patel wanted to bargain on service charges which were quoted at Rs.3,400/-.
12. By email letter dated 28/02/13, Complainant No.1 Ms. Margarida informed OP No.1 that she would do her own visa at the Consulate.
13. By email letter dated 4/03/2013 (copy at page 168) the said Shri Satyendra S. Patel informed OP No.1 that he would get the visa at Mumbai as he considered not practical nor wise to send the documents to Goa, and, infact, it is not disputed that the said Satyendra S. Patel obtained his own visa from the Spanish Consulate at Mumbai. By another email dated 5/03/2013 (copy at page 152) Complainant No.1 Ms. Margarida reiterated that she would do her own Schengen visa with the Portuguese Consulate, and, again by another email dated 6/03/2013 stated that we will do our visas ourselves and shore excursions from on board.
14. By letter dated 16/03/2013 (copy at page 154) written by Avinash, on behalf of OP No.2, to the Complainants Nos. 1, 2 and adv. Shri Tavora, they were informed that they (OP No.2) understood that they were doing their visas on their own and as such were requested to update them on their visa status and further requested to scan a copy of the same as they needed the same to send to the cruise liner, and, by email letter of the same date Shri Avinash informed Complainant No.5 Mrs. Maria Ana, in reply to her letter, that Turkey visa was not required for cruise guests who are in transit in Turkey. Complainant No.1 Mrs. Margarida informed Avinash of OP No.2 by email letter dated 22/03/2013 (copy at page 156) that the visas would be ready by mid April and they should not worry about the same and Complainant No.1 Margarida also informed the said Avinash of OP No.2 that she was going to do her Schengen visa on 4/04/2013. (copy at page 157).
Visa applications appear to have been submitted on or about 8/4/13.
15. Shri Avinash of OP No.2 sent to the Complainants cruise documents and baggage tags on 18/04/2013 along with what is known as guests ticket booklets which again contained several instructions. The Complainants were instructed that valid passports and visas (including multiple entry visas where applicable) are required and they were further requested to check entry requirements for their destinations with local passport office.
They were also informed that all passports, visas and other travel documents required on embarkation and disembarkation and all ports of call are the responsibility of the passengers. The Complainants were also informed to do on line check on the given website and were also updated on visa requirements by emphasizing that current and up-to-date visa information was best sourced from the Embassy/Consulate of the country proposed to be visited, and neither, Tirun Travel Marketing, nor the Cruise Line can be held responsible for visa procurement and rules and regulations of various countries to be visited of their cruise ship itinerary. They were also informed that it was the policy of Royal Caribbean Cruises Ltd. that guests responsible for identifying and obtaining all necessary documentation for entry into the country on their vacation itinerary and were particularly informed that for countries included in the Schengen visa regime, valid Schengen visa was required per itinerary.
16. Complainants and other members of the group of 13, including the two minor children of Complainant Nos. 2 & 3 left Goa on 15/16th May, 2013 by Qatar Airways to Barcelona, Spain and after a halt of about 4/5 days at Barcelona proceeded to board the ship `Serenade of the Seas on 19/05/2013 and at that time, the Complainants and the children of Complainant Nos.2 & 3 were not allowed to board the said ship as they were possessing only single entry Schengen visa, as one of the ports to be visited was Kusadasi in Turkey, which was not Schengen country. The Complainants and the said two minor children were left back. All efforts including contacting OP No.1, the Consul General of Portugal, etc. was of no help.
To cut costs, the Complainants returned to Portugal to stay with relatives and friends, and then were allowed to join the cruise ship, the Serenade of the Seas, only at Santorini in Greece, after crossing the port of Kusadasi in Turkey, and, thereafter the Complainants completed the remaining part of the cruise as per schedule and returned to Goa. On being informed of the incident which must have taken place at about 5 p.m., OP No.1, wrote an email at about 10.33 p.m. to the Complainants stating that:
Let me reiterate that right from the onset of the bookings we have been informing you that Multiple Entry Schengen visa is mandatory requirements for the cruise and that Turkey transit landing permit will be provided by the cruise company. In several of our correspondence on email and telephonic conversation it has been made clear and several doubts also cleared if the Multiple Entry Schengen visa issued by Portugal will allow you to board in Barcelona and all queries were answered.
The responsibility of obtaining visa for 12 members was taken up by Mrs. Margarida and we are unaware of what documents have been submitted to the Portuguese Consulate and what request for visa had been made, presuming that you will apply as instructed by cruise company and our correspondence.
Assistance from the cruise company was taken by only Mr. Patel & Fly for obtaining their visa and he too obtained visa on his own correctly as per instruction. Mr. Avinash had also requested to send the scanned copies of the visas of all families but none have sent the same.
17. Against the above background, the case of the Complainants is that the Complainants and the members of the group had complete trust in the ability and professional capacity of the OPs more so since OP No.1 always proclaimed that they were experts in the travel business and particularly in arranging appropriate visas for travel to foreign countries. The Complainants say that as per advice of OP No.1 the Complainants and other family members approached the Portuguese Consulate at Panaji for Schengen visa and their applications were filled as per guidelines of OP No.1 who was proactive throughout, as OP No.1 was to get substantial business from Complainants and others. The Complainants say that OP No.2 by email dated 16/03/2013 informed them that the visa for Turkey was not required for the cruise guests who were in transit in Turkey and that OP No.2 had also requested the Complainants to make available to the OPs scanned copies of the visas once they were obtained by the Complainants as they were required to be submitted to the Cruise Company for verification in advance obviously with a view to check on the nature of the visa obtained and to find out that all was in order to undertake the cruise holiday. The Complainants say that as per the advice of OP No.1 the Complainants and other family members arranged to make copies of their respective visas and had them delivered in the office of OP No.1 for their perusal and that OP No.2 through the said Shri Avinash conveyed to the Complainants and others that all travel documents including visas from Portuguese Consulate were in order and that the Complainants should concentrate on carrying appropriate clothing and other personal effects and that the OPs at no point of time made it known to the Complainants and others that the nature of the visas obtained were not in consonance with the requirements of specific cruise vacation being undertaken by them and that the Complainants being assured that all travel documents including the visas were in order that they proceeded to make bookings on time for several shore excursions being provided by Royal Caribbean International as they were advised that it would be prudent to book the shore excursions in advance.
18. On the other hand, it is the case of the OP No.1, that the complaint is an extortionist attempt made by the Complainants on account of their cruise going sour, being denied boarding at Barcelona, and the entire controversy is that the Complainants did not have multiple entry Schengen visas which was mandatory requirement for cruise vacation. OP No.1 states that out of the group of 13, 6 persons including the said advocate Shri Tavora and his family were taken on board the cruise ship, they having had multiple entry Schengen visas. OP No.1 states that the Complainants got single entry visa either on account of a mistake on the part of the Portuguese Consulate in granting Complainants Nos. 1, 4 & 5 single entry visas despite they having applied for multiple entry visas or the Complainants Nos. 1, 4 & 5 applying for single entry visas in view of status of Complainant No.1 Mrs. Margarida being a Portuguese Citizen or the Complainants not having annexed cruise vacation documents. OP No.1 has stated that the Portuguese Consulate is a necessary party to the proceedings. OP No.1 stated that the Complainant No.1 Mrs. Margarida, Complainant No.4 Shri Arun Agarwal and Complainant No.5 Mrs. Maria Anna Aggarwal have not annexed visa payment receipts deliberately in an attempt to suppress the information of visas, further stating that the Consulate grants visas gratis to their citizens and that Complainant No.1 Mrs. Margarida is a veteran in travel trade having worked for Jet Air Ltd. for the last 35 years and has a vast knowledge of visas, herself. OP No.1 concedes that they provide visa services on payment of fees but the Complainants did not seek nor OP No.1 provided any visa services to the Complainants, except for preparing the application forms as an assistance for the Complainants Nos. 2 & 3 and their two children and to advocate Shri Tavora, his wife and their two children, who were the other members of the group. OP No.1 has stated that no applications were filled in by OP No.1 for Complainant Nos. 1, 4 & 5. OP No.1 states that a party seeking visa services from OP No.1 gets complete follow up service with the Consulate, from the filling of the form and submission of all documents at various consulates till collection of the visa, though the party has to appear in person before the Consulate in case the Consulate so desires for a personal interview.
19. The OP No.1 states that the fact that the cruise booked by the Complainants required multiple entry Schengen Visa was highlighted in the quotation conveyed to adv. Shri Tavora by email dated 21st, 26th, 27th and 29th November, 2012 and by subsequent emails to all the members. OP No.1 states that the Complainants and all other members informed them that they did not require any visa services and they would be getting their own visas directly from the Portuguese Consulate.
OP No.1 states that no application forms were filled for Complainant Nos. 1, 4 & 5 and OP No.1 is not aware whether single or multiple visa requests were made by them. OP No.1 states that after the Complainants faced problems at Barcelona, Spain, Complainant No.1 called OP No.1 from Barcelona and informed that the Complainants were not allowed to board the cruise ship as they were holding single entry Schengen Visas and OP No.1 expressed sympathy and asked Complainant No.1 as to how that could happen when they had applied for multiple entry Schengen Visas and Complainant No.1 replied that she had made a mistake of filling application forms for herself and for Complainant Nos.
4 & 5 for single entry Schengen Viasas and when further asked as to why Complainant Nos. 2, 3 and their children did not get multiple entry Schengen Visas, Complainant No.1 gave no answer and that as per the request of Complainant No.1 they called Consul General of Portugal in Goa on 19/05/13 at his residence, as it was a Sunday, and explained to him what happened and the said Consul General was shocked to know that the Complainants had planned a cruise vacation and that they had not mentioned anywhere in documents that they had booked a cruise and had the Complainants put their itinerary and cruise booking receipts and other relevant documents they would have got multiple entry visas and as such he was not in a position to help because they had falsified and concealed about their travel plans and the said Consul General also spoke to the Consul at Barcelona and inspite of Mrs. Dorothy of OP No.1 having approached the Consulate on the next date, the Consul was not ready to do any changes in the visas that were issued. OP No.1 states that the Complainants have in a malafide attempt tried to push the responsibility and blame on the OPs. OP No.1 states that as per the rules of Portuguese Consulate persons applying for visas have to appear in person with relevant travel documents to support their travel plans along with financial documents and passport and after completion of formalities the Portuguese Consulate issues visas and hands over the documents personally to the applicants and it is the responsibility of persons applying for visas to collect the same and check/ verify as to the names, passport number, date of birth, type and nature of visas, duration of the visa, etc. and that in the case at hand 6 persons who constituted the group of 13 got multiple entry Schengen Visas while the Complainants got single entry Schengen Visas which they failed to check and as such there was complete negligence on the part of Complainants in not checking their visas. OP No.1 has stated that OP No.2 had requested the Complainants for scanned copies of visas but this request was not complied. OP No.1 states that besides providing overseas health insurance for 7 members of the group and booking tickets for all 13 members of the group no other service has been paid for or provided by OP No.1 to the said group. OP No.1 states that the cruise package was booked with OP No.2 and the cruise fare was directly paid by the Complainants to OP No.2. OP No.1 has also stated that FIT (Fixed Incentive Travel) booking forms filled by the Complainants also clearly show that the visa details were to be done by the Complainants and others. OP No.1 has denied that they had conveyed to the Complainants and others that their travel documents including the visas were in order or that they should concentrate in carrying appropriate clothing, etc. and that such a question did not arise as the Complainants had made it clear that they did not require visa services from OP No.1. OP No.1 states that the exciting cruise holidays was shattered not due to any deficiency in service on the part of OPs but due to the negligence and attitude of Complainants Nos. 2 & 3 of not checking the nature of visas issued by the Portuguese Consulate.
20. OP No.1 has also stated that no services of procuring visas were undertaken either by OP No.1 or OP No.2, and, as the Complainants were denied boarding at Barcelona, Spain, no part of cause of action as alleged has accrued in Goa.
21. The OP No.2 has stated that the complaint is bad for non-joinder of Tirun Travel Marketing and Royal Caribbean Cruises, in terms of the peculiar case set up by them. OP No.2 has also stated that there is no privity of contract with OP No.2 and Complainant No.3 Mrs. Judith Tavora and that the Complainants have approached with unclean hands and have suppressed material facts and documents. OP No.2 has stated that there is no deficiency on the part of OP No.2 in respect of the services hired or availed and no service of procuring of visas was undertaken by OP No.1 or OP No.2. OP No.2 has also stated that Complainant No.1 and her brother adv. Shri F. Tavora are widely travelled persons and it was indicated to them that they would be lead persons in the said group of 13 and would be coordinating with the OPs and that the cruise required each of the guests to obtain a multiple entry Schengen Visa which was highlighted in the quotation sent by email on 21st and 26th November and that the Complainants and other members of the group had informed them that they did not require any visa services and that they would directly obtain their visas from the Portuguese Consulate which fact the Complainants have deliberately suppressed. OP No.2 has stated that the Complainant Nos.4 & 5 have willfully not annexed the visa payment receipts only in an attempt to suppress the vital information as to the type of visas applied for by them. OP No.2 states that the Complainants falsified and concealed the travel plans from the Portuguese Consulate and consequently came to be issued single entry Schengen Visas. OP No.2 has stated that their local representative had required the Complainants and others to send scanned copies of their visas by email dated 16/03/13 as a mere courtesy but this request was not complied by Complainants and others and had this request been heeded, the entire fiasco could have been avoided. OP No.2 has stated that the Complainants duly read and understood the terms and conditions of booking and the Complainants even mentioned on the booking forms against visa details as NA in as much as the Complainants never availed any visa services from OP No.2 nor OP No.2 gave them any advice or charged any fees or consideration. OP No.2 has stated that costs of the cruise paid by the Complainants did not include visa fees.
22. OP No.2 has stated that the Complainants did not comply with their email dated 16/03/13. OP No.2 has further stated the cruise documents received from OP No.1 qua the Complainants were in turn delivered to the cruise liner. OP No.2 has further stated that as they had not taken any responsibility for arranging the visas for the Complainants, they were under no obligation to verify the visa documents of the Complainants.
OP No.2 has also denied that at no point of time the Complainants or others made known to them about the visas obtained by them. OP No.2 states that the visas were directly applied for, pursued and procured by the Complainants and other members of the family without any involvement of OP No.2 and that the Complainants were provided with guests ticket booklet around 18/04/2013, almost a month prior to the departure and which categorically stated about the requirements of multiple entry visas for the said cruise. OP No.2 has stated that the Complainants had undertaken to obtain the visas on their own and the Complainants nor others bothered to send the scanned copies although specifically requested by OP No.2. OP No.2 has also given the same reasons as OP No.1, why the Complainants got a single entry Schengen Visa. OP No.2 has also stated that it was the responsibility of the Complainants to verify their travel documents particularly their visas after obtaining the same, to ensure that they were of the nature and type required for the cruise which was already communicated to them well in advance but the Complainants failed on this count and now are valiantly trying to make the OPs answerable for their lapses.
23. The first objection taken by Shri N. G. Kamat on behalf of OP No.2, is regarding the jurisdiction of this Commission, supported by Shri C. A. Coutinho on behalf of OP No.1. Pointing out to FIT booking form, (copy at page 321) lr. advocate Shri Kamat submits that the Complainants had agreed in terms of condition no.11 that all disputes/ complaints with respect to the terms and conditions of the tour and services would be subject to the jurisdiction of Courts at Mumbai only. In answer to the said submission, Shri A. Silva, the lr. advocate of the Complainants has relied upon the decision dated 13/09/2003 in C.A. No. 20 (M) 1997 given by the Meghalaya State Commission in the case of Bimal Auto Agency vs. Smt. Rekha Das. Although we may not agree with all the views expressed in the said decision, we are not inclined to accept the submission of Shri N. G. Kamat, the lr. advocate of OP No.2 for reasons, more than one. Firstly, an objection to jurisdiction is required to be raised not only in the court of first instance but also at the earliest possible opportunity. OP No.2 did not raise the issue of jurisdiction in the manner OP No.2 has now sought to argue the same. If at all OP No.2 pleaded that this State Commission has no jurisdiction it was because, according to OP No.2, the cause of action had taken place at Barcelona, Spain, and by implication, not within the jurisdiction of this Commission. Admittedly, the entire cause of action as alleged took place within the jurisdiction of this Commission and the branch office of OP No. 2 is situated at Margao, though their registered office may be located at Mumbai. The office of OP No.1 is also at Margao. Admittedly, no part of cause of action took place at Mumbai as the FIT forms were filed in Goa. Condition 11 of the FIT booking forms could have been valid only in case the parties could have validly agreed to it. It is well settled in law that parties cannot confer jurisdiction on a Court and at a place when it has none. In other words, parties cannot confer jurisdiction by agreement on a Court at a place which it otherwise does not possess. If cause of action arises at more than one place, parties by agreement, can waive their right to institute action at one or other place. If the contract is to be performed at the place it was made, the suit, or in this case the complaint, on the contract has to be filed there and nowhere else. The jurisdiction, the parties agreed to submit i.e. at Mumbai, where no cause of action or part of it took place, to decide the dispute arising out of the contract, it must be declared void, as being against public policy, and, in such situation the court will not enforce such clause which tends to oust jurisdiction of a court which has the jurisdiction and tends to confer jurisdiction on a court at a place where it has no jurisdiction. (See ABC Laminart Pvt. Ltd., AIR 1989 SC 1239).
24. Another objection to be decided is regarding the non-joinder of the Portuguese Consulate or for that matter Tirun Travel Marketing or Royal Caribbean Cruises as contended by both the OPs.
25. The Complainants had dealings with Royal Caribbean Cruises through OP Nos. 1 & 2, if at all, after Tirun Travel Marketing advised the Complainants to approach them Complainants have sought no relief against the Portuguese Consulate or for that matter against Tirun Travel Marketing or Royal Caribbean Cruises. That no relief could be sought against the Portuguese Consulate, has been exhaustingly dealt with by Order of this State Commission dated 4/08/14, interalia, by observing that the Consular officers and Consular employees are not amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of the acts performed in exercise of their consular functions, in terms of the Vienna Convention on Consular Relations, 1963, as acceded by our Country on 28/11/77. Complainants have also sought no relief against either Tirun Travel Marketing or for that matter Royal Caribbean Cruises, and, therefore, they cannot be said to be necessary parties to this complaint.
26. Another point raised by Lr. adv. Shri Silva, on behalf of the Complainants, is that in case the Complainants had only single entry Schengen Visas, the Complainants could have been allowed to board the cruise ship at Barcelona and then asked to alight at Athens, Greece, and, then again asked them to join at Santorini, Greece, bypassing the port of Kusadasi in Turkey. According to Shri Silva, this arrangement would have much reduced the cost and the cruise holiday only by one day. Shri C. A. Coutinho, lr. advocate of OP No.1, sought to explain this position, by submitting that the requirements of the cruise, as conveyed to the Complainants, was that they should have a multiple entry Schengen Visa and since they did not have such a visa, they were prevented from boarding the ship as informed earlier. Shri Coutinho submits the situation can be compared with a person buying an e-ticket and going to the airport to catch a plane, and in case he does not have his proof of identity, he or she will not be allowed to enter the airport itself.
27. We are not inclined to accept the submission of Shri Silva for reasons more than one.
Firstly, it is not the case of the Complainants that any one of them had requested Royal Caribbean Cruises whilst at Barcelona to make such an arrangement and they had declined. Secondly, the Complainants were informed way back on 21/11/12, and, thereafter time and again, that in case they did not possess proper documents they may be prevented from boarding the ship. Because the Complainants did not have multiple entry Schengen Visa that they were prevented from boarding the ship at Barcelona itself. Moreover, it is the Royal Caribbean Cruises who stopped or prevented them from boarding the cruise ship, and they are not before this Commission to explain under what circumstances the Complainants were prevented from entering the ship. The OPs are only their agents. Although, a principal would be bound for the acts of omission or commission of his/ her agents there is no corresponding principle in law that the agents would be answerable to the acts of their principal. We therefore find the submission made o behalf of the Complainants is untenable and needs to be rejected.
28. Admittedly, the cruise fare was paid by the complainants to the said Royal Caribbean International through OP No. 2 and there is no dispute about it. Admittedly also, OP No. 1 obtained for the complainants air tickets from Goa Barcelona Goa from Qatar Airways at 0% commission on 24/03/2014 and the same must have been forwarded to the complainants. OP No. 1 did not charge any fees or commission on the purchase of the said air tickets. Admittedly also, OP No. 1 provided overseas health insurance services to seven persons in the group of 13, but there has been no problem in that area. Admittedly also, the applications for obtaining multiple entry Schengen visas for complainant Nos. 2 & 3 and their two children as well for advocate Shri Tavora and his family were filled by OP No. 1, without charging any fees as they had difficulty in filling online applications. OP No. 1 must have certainly collected their commission for providing health insurance and both OPs, on sale of cruise tickets. The complainants faced no problem with insurance obtained nor with tickets purchased. They faced problems because of visas, obtained by them, for which neither OP No. 1 or OP No. 2 had charged any fees.
29. Complainants pleaded that OP No. 1 proclaimed that they were experts in arranging appropriate visas, and on their advice, they approached the Portuguese Consulate. In their evidence, complainants No. 2 Luis has stated that OP No. 1 informed them because of the business gained by OP No. 1 necessary advice in the nature of visas would be given without any additional fees. This is a clear improvement. However, it is not his case that he or any of them had paid visa fees to OP No. 1.
Complainant No. 1 Ms. Margarida states that she did not state that she would obtain the visa on her own (para 10 of affidavit).This is completely contrary to her letter dated 28/2/13 reiterated by letter dated 5/3/13 stating that she will obtain her own visa. Here it may be stated that Complainant No. 1 Ms. Margarida, one of the lead members of the group, reiterated on 5/3/13 and again on 6/3/13 (copies of letters at pages 152 and 153) and after OP No. 1 disclosed to the said Satyendra Patel about the fees they would charge for obtaining the visas, that they would do their own visas. The Complainants and the said Satyendra Patel had undertaken to do their own visas very categorically, and probably because they did not want to pay the visa fees quoted by OP No.
1. Complainant No. 1 Ms. Margarida has tried to turn and twist but very unsuccessfully in para 10 of the affidavit, what she categorically stated in her letters to OP No. 1 that she would do her own visa. That the Complainants would do their own visas was also understood by OP No. 2 as can be seen from letter dated 16/3/13. Complainant No. 1, who is a Portuguese national and who did her own visa has not explained as to how she got single entry Schengen visa in case she had at all applied for multiple one.
30. The Complainants, in support of the complaint, filed the affidavits in-evidence of complainant No. 1, complainant No. 2 and Adv. Shri. Tavora. OP No. 1 filed the affidavits of Bruno and Dorothy.
OP No. 2 filed the affidavit of Avinash DSouza, refuting the allegations made. The complaint was taken up for oral arguments on 20/10/14.
The main issue then was whether the complainants had sent or delivered the visas obtained by them to OP No.
1. The averment in the complaint was that the complainants and other family members then arranged to make copies of their respective visas and had them delivered in the office of OP No. 1 for its perusal and further necessary action. It was not the case of the complainant No. 1 or for that matter complainant No. 2 or Adv. Shri. Tavora that it is one of them who had delivered the visas in the office of OP No. 1. Doubts were expressed that all three, being busy persons and residing elsewhere other than the place of business of OP No. 1, would not have personally delivered the said visas in the office of OP No.
1. In fact, Shri. DSilva, the lr. advocate of the complainants, when posed with the question as to which of the said three persons had delivered the said visas in the office of OP No. 1, was unable to answer the question and sought an adjournment. The complainants did not remain present on the next date i.e. on 15/09/14 ; but on 24/09/14 the complainants filed an affidavit of Mr. Socorro Oliveira who claims to be a driver-cum-errand boy of complainant No. 1 and who has stated that in the third week of April (which year?) he was requested by complainant No. 1 Ms. Margarida to proceed to Panaji to the office of her brother Adv. F. Tavora collect some documents and who further claims that he went to Panaji where he met complainant No. 2 Luis and the said Adv. Shri. Tavora and thereafter on the next day at the request of complainant No.1 Ms. Margarida, he delivered a bag/packet containing some additional documents to OP No. 1. Thereafter, Dorothy Albuquerque of OP No.1 filed an additional affidavit denying the facts stated by the said Socorro Oliveira. The said Ms. Dorothy has also stated that complainant No. 1 and Adv. Shri. Tavora have been communicating via emails and telephones on every small issue connected with the cruise holidays, and, that Socorro Oliveira had made a false statement, to say that the documents were delivered at about 11.30 hrs. to one of its office staff who was in uniform.
31. In our view, in case the documents/visas were delivered in the office of OP No. 1 by the said Socorro Oliveira, we fail to understand as to how the complainants did not state such an important fact in their complaint itself. We find from the record, that the complainants, are email savy persons who at the drop of a hat, so to say, have been exchanging emails amongst themselves and or with OPs and in case the said documents were really delivered in the office of OP No. 1 by the said Socorro Oliveira, the complainants would have confirmed the same by an email or OP No. 1 would also have acknowledged the receipt of the said documents. Moreover, as rightly pointed out on behalf of OP No. 2, in case the visas were required by Avinash of OP No. 2 by his letter dated 16/03/13 (copy at page 154), why the complainants should have sent the visas to OP No. 1? The complainants have not produced any documents or mentioned the dates as to when they booked the shore excursions to corroborate the story set up by them i.e. whether the shore excursions were booked after the second or third week of April 2013 or prior to it. The version of the complainants that the visas were delivered by them to the office of the OP No. 1, therefore, cannot be accepted.
32. Shri. A. Silva, the lr. advocate of the complainants, then would submit, when asked, as to what is the deficiency in service on the part of both the OPs, that the OPs failed to discharge a duty cast upon them as travel agents/consultants in as much as they failed to advise the complainants on the appropriate nature of visa which was required to board the cruise ship and also to examine the travel documents which were furnished for their perusal. As far as the advice is concerned, plenty of it, was given to the complainants, as can be seen from the correspondence exchanged between the parties, to which reference is already made, particularly in paras 7 and 10 hereinabove, including by last letter dated 18/04/13 addressed by OP No. 2 (copy at page 496) by which the cruise documents including guest ticket booklets and baggage tags were forwarded to the complainants and the complainants were also asked to complete the online check on the given website and further informed that the policy of Royal Caribbean Cruises Ltd., was that the guests are responsible for identifying and obtaining all necessary documentation for entries in the countries on their vacation itinerary. They were further informed that valid passports and visas including multiple entry visas applicable were required and were also informed that they should check entry requirements for their destination with their local passport office. Are the Complainants trying to convey that Complainants Nos. 2, 3 and Adv. Shri Tavora filed applications for multiple entry Schengen visas, without knowing that they were really required?
That some of them got single entry Schengen Visas is another matter. Lr. advocate Shri. Silva then submits that the OPs did not answer adequately whether separate visa was required to visit Turkey and the answer given in letter dated 16/03/13 (copy at page 155) was insufficient. Here it may be noted that complainant No. 4 Arun was informed, in answer to complainant No. 5s letter of the same date, that Turkey visa was not required for cruise guests who are in transit in Turkey. It is not the case of the complainants, that in case they were not satisfied with the said answer, any of them, sought further clarification from OP No. 2 Avinash. Here, it may also be noted that a copy of the website produced by OP No.1 of the Republic of Turkey shows that foreigners who are travelling to Turkey by cruises are allowed to enter Turkey without visa for a maximum period of 72 hours with the permission given by the local security authorities. The information given by OP No.2 by letter dated 16/03/13 was correct and more than adequate. In any event, the complainants in case they were not satisfied with the said reply dated 16/03/13 ought to have sought a further clarification from the OP No. 2, which admittedly was not done. The complainant Nos. 2, 3 and their children as well as Adv. Francisco Tavora and his family had all applied for multiple entry Schengen visas, and the only possible inference is that they all knew that the requirement for the tour was a multiple entry Schengen visa, as informed to them time and again. The complainants have failed to explain as to how Adv. Shri. Francisco Tavora and his family got multiple entry Schengen visa and as to why complainant No. 2 and his family failed to get such visas, when both the families of both the brothers had applied for the same type of visas, namely multiple entry Schengen visa? It was the duty of the complainants to have verified the visas which they had obtained on their own after they collected the same from the Consulate at Panaji to find out whether what they had applied for was given to them or not, and, it is more than probable, as submitted on behalf of OP No. 1, that Adv. Shri. Tavora got multiple entry Schengen visa because Adv. Shri. Tavora had produced all the necessary documents and complainant No. 2 Luis and Complainant No.3 Mrs. Judith did not get multiple entry visa because they had not produced the necessary documents.
The other possibility suggested, on behalf of OP No.1, that Adv. Shri. Tavora might have got multiple entry visa due to a mistake committed by a Portugal Consulate appears to be too remote and least probable. It is also to be noted that the complainants have not produced the applications filed by them for visas particularly by complainant No. 1 and the documents produced by all alongwith the applications for visa filed by them with the Portuguese Consulate alongwith receipts for payment of fees and their only submission is that they do have them. In our order dated 4/8/14, on application filed by OP No. 1 dated 24/06/14, we had observed that the parties would do well in their own interest to produce the copies of the visa application alongwith documents, lest inferences one way of other are drawn against them. As rightly submitted on behalf of the OPs, this is a fit case to draw adverse inference against the complainants who have not produced copies of visa applications/documents and particularly visa fee payment receipts, etc. filed before the Portuguese Consulate.
33. Shri. A. Silva, the lr. advocate of the complainants, next would submit that only because the complainants had obtained their visas on their own, the responsibility of the OPs would not have been over. Lr. advocate conceded in the course of arguments ( a fact earlier suppressed) that complainant No. 1 had stated that she would obtain her own visa in email dated 28/2/13 (copy at page 148), email dated 5/3/13 (copy at page 152) as well as email dated 6/3/13 (copy at page 153).
Lr. advocate Shri. Silva submits that OP No. 2 has failed to satisfy that the requirement of letter dated 16/3/13 (copy at page 154) was complied with. We are not impressed with this submission. We may only observe that the requirement of letter dated 16/3/13 sent by Avinash of OP No. 2 was required to be complied with by the complainants and the complainants had not complied with the same till 18/4/13 when cruise documents with baggage tags were despatched to the complainants. Another submission made by Shri. Silva is that the passports were collected from the complainants, and if so, why not visas? This submission is made in the air without any pleading or evidence in support of the same. That apart, passports might have been required to book air tickets and cruise tickets. Visas would be required only in Barcelona. Moreover, it is the complainants who failed to comply with requirement of letter dated 16/3/13 and they have to blame themselves for the same.
34. We have already concluded that it is the complainants who had undertaken the responsibility of obtaining, their own visas and as such it was their duty to have verified the same to find out whether they were given what they had asked for. This they did not. We have also concluded that the complainants story that the visas were delivered to OP No. 1 is not proved and therefore cannot be accepted, apart from the fact that there is no explanation from the complainants as to why the visas were sent to OP No. 1, when they were requested by OP No. 2. Even if the visas were sent to either of the OPs, they had no responsibility to verify the same, as the entire responsibility to obtain visas was taken by the Complainants right from 4/12/12 with a view not to pay visa service charges to OP No.1. Here, it may also be noted that as far as OP No. 2 is concerned, the entire transaction came to an end when the tickets booked by the complainants for the said cruise were despatched to the complainants by OP No. 2 by letter dated 18/4/13. The problem has been with the visas and not the cruise tickets purchased through OP No. 2. OP No. 1 might have obtained foreign medical insurance for some of the complainants and might have also got some commission on the same as well on cruise tickets booked through OP No.
2. The air tickets were booked by OP No. 1 without any commission overcharges.
The complainants having chosen to obtain the visas on their own, and not having availed the service, on payment offered by OP No.1, the Complainants cannot blame OP No.1 and much less OP No.2 for obtaining wrong visas. They have no one to blame except themselves. As already stated, the OPs were under no obligation to verify the visas even if they were sent to them and the responsibility was of the complainants themselves to find out whether what they had applied for was given or not to them by the concerned Consulate. The complaint appears to be knee jerk reaction to the unfortunate incident which took place at Barcelona on 19/5/13 when the complainants and the children of complainant Nos. 2 and 3 were prevented from boarding the cruise ship as they did not have with them multiple entry Schengen visas. The version given by OP No. 1 in paras 13(a), which we need not reproduce again, appears to be far more probable then the story set up by the complainant.
35. We need not refer to the decisions cited on behalf of the complainants, as in those cases visa fees were paid for obtaining visas. Here, the Complainants obtained their own visas to avoid payment of service charges of Rs.3,400/- to OP No.1. A fact here or a fact there, can always make miles of difference. Decisions cited are no precedents to be followed in this case.
36. We, therefore, find there is no merit in this complaint and consequently we proceed to dismiss the same with no order as to costs.
[Shri Jagdish Prabhudessai] [Justice Shri. N. A. Britto] Member President /lm /sp