State Consumer Disputes Redressal Commission
Cox And Kings (India) Ltd Ceebros Rangam ... vs V. Thangavelswamy, Retd. College ... on 13 July, 2012
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice R. REGUPATHI PRESIDENT Thiru A.K. ANNAMALAI MEMBER
(JUDICIAL) Thiru S. SAMBANDAM MEMBER F.A.NO.285/2011 (Against order in O.P.NO.251/2007 on the file of the DCDRF, Madurai) DATED THIS THE 13th DAY OF JULY 2012 Cox and Kings (India) Ltd Ceebros Rangam No.11, Cenotaph Road, Teynampet Chennai-
600 018 Appellant / 1st Opposite party Vs.
1. V. Thangavelswamy, Retd.
College Professor 2/29, 5th Main Road, Gomathypuram Madurai-
625 020 1st Respondent/ Complainant
2. M/s. Travel Toons Pvt. Ltd., 113-A, 2nd Floor West Perumal Maistry Street Madurai- 625 001
3. R. Ilango Executive (Leisure) M/s. Cox & Kings ( India) Pvt.
Ltd., 468, Perumalkoil South Mada Street (R2 & R3 Given up) Madurai- 625 001 Respondents/ 2 & 3 Opposite parties The 1st Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay a sum of Rs.1,25,473/- towards refund of amount paid, alongwith interest, and compensation of Rs.6 lakhs. 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.19.2.2010 in CC. No.251/2007.
This appeal coming before us for hearing finally on 27.6.2012. Upon hearing the arguments of the counsel on either side, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order in the open court:
Counsel for the appellant/ 1st Opposite party: Mr. Mothilal Goda Counsel for the 1st Respondent/Complainant : Mr. R. Kannan JUSTICE R. REGUPATHI, PREIDENT
1. The 1st Opposite party/ M/s. Cox and Kings, preferred this appeal, alongwith two other agents, aggrieved by the order impugned, passed by the District Forum, wherein the complaint preferred by Professor Thangavelsamy, was allowed, and a compensation has been awarded.
2. The brief facts of the complaint as follows:
The complainant attracted by the newspaper advertisement, for a package tour to Europe, for 10 days at the cost of Rs.79,999/-, with a further offer of 50% of the amount offered as cash back, after completion of one year from the date of tour. The complainant paid necessary charges, for arranging the visa, and incidental arrangements, and for the purpose of tour has paid a total sum of Rs.1,25,478/- (Rs.20000/- in advance and Rs.1,05,478/- as final payment), for the tour to take off on 17.5.2007. To the shock surprise of the complainant, it was intimated to him, over phone that the companion arranged to travel along with him could not secure a valid visa, and under such circumstances, the complainant may have to pay Euro 432 (Rs.25000/- approximately) as additional charges for a twin sharing room, as per the agreement, further informing if the complainant decides to cancel the programme, 100% cancellation charges will be levied. The complainant opted to cancel the tour, and demanded for the refund of the amount. It is alleged that such identical tour is being conducted by the opposite parties, repeatedly for 46 times between April and September, and if it was not difficult for the opposite party to accommodate the complainant in the next tour.
As per letter dt.17.7.2007, the complainant was informed that a sum of Rs.50000/- has been forfeited towards cancellation charges, and the balance can be received. Thus alleging deficiency, the complainant filed a complaint, before the District Forum, claiming for return of the passport, and for refund of the entire amount paid towards tour programe, as well as compensation for deficiency in service and cost.
3. Before the District Forum, 1st opposite party/ appellant filed version, denying the allegations, which was adopted by the 3rd opposite party.
Though filed written version, have not chosen to file the proof affidavit, to prove his case, and also not filed any documents. Hence the opposite parties 1 and 3 were set exparte. The 2nd opposite party, though served, remained absent, was set exparte.
4. The District Forum, passed an order without considering the written version of the opposite parties 1 and 3, since they were set exparte, alleging deficiency on the part of the opposite parties, granted refund of the amount with 9% interest, alongwith compensation of Rs.10000/- and cost of Rs.3000/-, which is impugned before us now, by the 1st opposite party.
5. The learned counsel, while denying the allegations put forth in the complaint, submitted that though entire amount of Rs.125478/- has been received by the appellant, since the complainant has cancelled the tour program, he is liable to pay Rs.50000/- as per the terms and conditions, entered into at the time of booking. The tour program of the complainant has been arranged on twin sharing basis, and since the companion of the complainant has been dropped, it should be construed that the complainant was travelling alone, and was liable to pay a single supplementary charges of Rs.25000/-, equivalent to Europe 432 and when demanded such amount was not paid, and therefore he is not eligible to travel and contended that he has violated the terms and conditions. A person by name Mr.Susai Michael, has been arranged as a companion, and both of them were available to travel on twin share basis, single supplement charge was not levied on either of them. Since visa for Susai Michael could not be obtained by the opposite parties, complainant is liable to pay single supplementary charges, and further contended that no other person was willing to travel with the complainant on twin sharing basis, and the complainant was liable to pay single supplement charges, as per the terms and conditions of the agreement, between the complainant and the 1st opposite party. Since such cancellation has been done on 11.5.2007, for the tour schedule on 17.5.2007, a sum of Rs.50000/- was liable to be deducted, on account of cancellation charges, and submitted that the 1st opposite party is willing to pay the balance, and offered to return the passport, and other documents to the complainant.
6. The learned counsel for the complainant/ respondent, while repeating the contentions raised in the complaint, submitted that he has not signed any agreement, as alleged by the 1st opposite party, and the contentions presently put forth before this Forum is concocted, and there is no basis for such contentions.
7. We have heard the learned counsels, and perused the materials filed on behalf of the complainant, and the written version filed by the opposite parties, though not taken into consideration by the District Forum.
8. The opposite parties, have been set exparte, for not filing Proof Affidavit by them and since there was no representation on their behalf. But having filed their detailed reply, by way of written version, we are inclined to consider the same, and on the basis of oral arguments now made, we observe as follows:
9. On specific direction by this commission to the opposite parties, a Xerox copy of the booking Form 07 with instructions as to How to Book, has been filed before this commission. It appears, the appellant has mainly relied on the terms and conditions, entered between the parties, at the time of booking.
But, admittedly no document has been filed, before the District Forum and even when the matter has been taken up before this Commission, only a Xerox copy of the booking Form-07, signed by the complainant has been produced by the opposite parties.
10. On careful perusal of the contents printed overleaf of the booking form How to Book, we could not find any condition for imposing single supplement charge, on those who booked a ticket on twin sharing basis, is liable to pay Rs.25000/-, in the event of dropping out of their companion. When complainant refused to pay the extra amount of Rs.25000/-, the opposite party replied under Ex.A8 letter dt.12.5.2007, that if you wishes to cancel the tour, 100% cancellation charges will be applicable, and your tour cost will be forfeited as per the terms and conditions. There is no such terms in Terms and Conditions in the overleaf. Having said so, further in the letter dt.19.7.2007, it is stated that In any case, you cancelled the tour only because you wrongly refused to pay the single room supplement contrary to the contractual understanding between us. We were ready and willing to accommodate you on the tour subject to your payment of single room supplement. You are aware that cancellation at any time between 15 to 02 clear days prior to the departure results in levy of cancellation charges of RS.50000/-. Therefore, in any case you are liable for Rs.50000/- as and by way of cancellation charges.
11. By filing the written version the opposite party, contended that the complainant was levied single supplement charges, since no other person was available to travel with the complainant. We could safely presume that the opposite parties were making arrangement for a companion, and could not succeed. The contention that because of dropping out of the companion levied supplementary charges appears to be false. On careful perusal of the extract of the conditions mentioned for the tour programme in the written version, and with the Xerox copy of the booking form, we could not find such conditions, and therefore we could safely conclude that such condition has been invented deliberately for the purpose of the case, and if such a conclusion is reached, it appears that the cancellation has been done suomoto by the appellant, to suit their convenience, and ultimately it is the opposite party/ appellant only has violated the condition, and they are not liable to levy cancellation charges on the complainant. It appears that the complainant was willing to take up anyother companion, as well as for accommodating him in the next available tour or for refund, but such a request of the complainant was not considered.
12. It appears that the complainant signed in the booking form, only in the front page, and in particular at the column client declaration, wherein it has been stated as follows:
On behalf of the persons named above, i/We have read the booking conditions and terms and conditions, a copy of which has been furnished to me/us. I/we being duly authorized the said persons do hereby agree and accept the same for self and others.
On perusal of the overleaf, under the heading How to book, certain instructions were printed, with very small fond size (Fond size 5) that humanly it is impossible for anyone to read with naked eye. Though such printed overleaf contains certain instructions regarding the tour, this itself cannot be treated as terms and conditions. More over we do not find a signature in this overleaf page and the routine way in which things had happened it is doubtful whether a tourist had opportunity to read and understand the same.
13. In the event of claiming that an agreement has been entered into between the parties, it should be done in the manner known to law, and the parties must understand the contents of the same, so that the same could be enforceable in a court of law. On perusal of both the pages, we could see that the contents of the sheet of papers, which is produced by the appellant is unenforceable, apart from the fact, that such conditions alleged by the appellant is not available. Moreover, we could find, that imposing certain conditions, which is allegedly shown to the complainant, which is not readable by the naked eye, and building a concocted cock and bull story that a contract has been signed between Cox & Kings and the complainant, is unrealistic and unenforceable. Demanding more money, cancellation of the tour, levying of cancellation charges are, undoubtedly an unfair trade practice and criminal intimidation. If an agreement is signed between the parties, there should be transparency and clarity about the terms and conditions, where certain instructions printed overleaf as How to Book, cannot be considered as conditions enforceable. It is absolutely necessary, that such terms and conditions should be printed in such readable font and signature must be obtained after understanding the same by the parties in appropriate places to constitute a valid enforceable agreement. What was signed in the front page at the column client declaration cannot be construed as terms and conditions moreover How to book mentioned in the overleaf also cannot be called as terms and conditions, when a dispute arises between the parties, especially like a case on hand, we cannot construe such practice adopted by the opposite parties, as a contract in the strict sense.
Sec.17 & 18 of Indian Contract Act, reads as follows.
17. Fraud defined- Fraud means and includes any of the following acts committed by a party to a contract, or with his convenience, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract-
1. the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
2. the active concealment of a fact by one having knowledge or belief of the fact;
3. a promise made without any intention of performing it;
4. anyother act fitted to deceive;
5. any such act or omission as the law specially declares to be fraudulent.
18. Misrepresentation defined- Misrepresentation means and includes:-
1. the positive assertion, in a manner not warranted by the information of the person making it, of that which is to true, though he believes it to be true.
2. any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under hi, by misleading another to his prejudice, or to the prejudice of anyone claiming under him;
3. causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.
14. The service providers must be transparent, plain speaking and honest. It appears procedure established by law has not been followed by the opposite parties, and were having hidden agenda, indulged in unfair trade practice. This Consumer Forum has power to issue directions as per Sec.14(c) (d) (f) and (hc), which read as follows:
14(c ): to return to the complainant the price, or as the case may be, the charges paid by the complainant;
14(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party;
14(f) to discontinue the unfair practice or the restrictive trade practice or not to repeat them;
14(hc) to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement
15. On the basis of the allegation and available materials prima-facie it appears that the opposite parties, apart from indulging in unfair trade practice as service providers, committed an offence U/s.409 IPC, which reads as follows:
Criminal breach of trust by public servant, or by banker merchant or agent- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach or trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term, which may extend to ten years, and shall be liable to fine.
For demanding extra money, withholding the amount given, passport and visa of the complainant, the complainant is at liberty to proceed against the opposite parties to proceed against the opposite party under Monopolies and Restrictive Trade Practices Act, or to punish them under Criminal Law before the jurisdiction Magistrate Courts . We are of the considered view, that the opposite parties have dishonestly withheld the amount of the complainant and thereby committed wrongful loss to the complainant and wrongful gain to the opposite parties, which will be a clear case of misappropriation and deficiency in service.
16. There is now greater recognition that consumers need to be protected not only from the effects of restrictive practices, but also from practices, which are resorted to by the trade and industry to mislead or dupe the consumers. The advertisement and representation to the consumers should not become deceptive.
There is an obligation on the part of the service providers that he must speak the truth. The obligation also requires that representation that is made to consumers, must not only contain an element of proof, but also avoid half-truth, so as to give deliberately a different impression, than the actual fact.
The advertisement may be misleading, because things are omitted, that should be said or because the advertisement are composed, or purposefully printed in such a way, as to mislead. A situation must be developed, in which the General public must be saved from victims of the false claims of the products belatantly advertised. If a consumer is falsely induced to enter into buying certain goods, which do not possess quality and do not have the cure for ailment advertised, it is apparent that the consumer is being made to pay for the quality of things, on false representation. Misleading and deceptive practices by the service providers cannot be encouraged.
17. On perusal of the pleadings and booking form, and on careful assessment of the argument made, this commission is of the considered view that the opposite parties played fraud, not only on the complainant, but also before this commission. The alleged terms and conditions, differs from the one given in the written statement from the Booking Form. A claim has been made for Single supplementary charges and such condition is not available in both the documents, and opposite parties asserted that such condition was condition precedent for cancellation.
18. The attitude of the opposite parties are highly lethargic that they remained exparte and delayed the proceedings, even after filing written version. Necessary document to constitute a contract by terms and conditions, were not filed.
Originals were withheld. Though there was no condition for imposing supplementary charges even as per their pleadings, a demand was made and for non-payment cancelled the tour. In the letter dt.12.5.2007, with dishonest intention and to intimidate, informed forfeiture of the entire amount. Prayer of the complainant for someother campanion in double room accommodation, or to travel in the subsequent tour or for return of amount given was not considered and ultimately levied cancellation charges of Rs.50000/- and withheld the entire money, passport etc., till date. Though the complainant was willing for compromise, even before this commission, the opposite parties declined.
19. The learned counsel for the respondent/ complainant submitted that in view of the possibility of receiving 50% money as cash back, after an year, in the event of travel, as agreed by the opposite parties, more compensation could have been awarded. Withholding the entire amount and passport, even after a lapse of four years, has caused mental agony to the complainant. Considering other circumstances, a claim of Rs.6 lakhs towards compensation has been made, but the District Forum has erroneously granted a paltry sum of Rs.10000/- and submitted that the compensation ought to have been awarded in entirety as prayed for.
20. Though the complainant sought for a direction for return of entire amount of Rs.1,25,473/- with interest and to pay a compensation of Rs.6 lakhs to the complainant, while passing the order impugned, issued direction for return of Rs.125473/- with interest @ 9% p.a. However awarded compensation of Rs.10000/- only for mental agony and Rs.3000/- as costs of these proceedings. While confirming the conclusion reached by the District Forum, we are of the considered opinion that the compensation awarded for deficiency of service and mental agony is on the lower side, not commensurate to the deficiency in service alleged. As per Sec.17(1)(b), the State Commission has got power to pass appropriate orders in any consumer disputes in the event of failure to exercise a jurisdiction and in the case on hand, failed to award appropriate compensation, commensurate with the suffering, loss and mental agony. If the complainant is accommodated in the tour, he would have received 50% of the cost of the tour during 2008 itself, as cash back offer as advertised and promised. Keeping in view of the facts and circumstances of the case, we are of the view, the complainant deserves compensation as prayed for and accordingly we enhance the compensation from Rs.10000/- to Rs.6 lakhs, and further direct that the opposite parties to deposit the same within six weeks from the date of receipt of the order.
21. It is painful to see that the consumers, literate/ illiterate are taken for granted by the service providers, after receiving the money. The delay in disposal of cases creates great discomfort, mental agony and ultimately the consumers loose hopes with the courts. For effective implementation, not only awareness, but strong support from authorities, Government, NGOs and activists are required.
The compensation awarded must be an eye opener not only for service providers, but also an encouragement to the real consumers.
22. In view of the observations made above, it is undoubtedly clear, that there is deficiency in service on the part of the opposite parties, and the opposite parties have committed unfair trade practice.
23. In the result, the appeal is dismissed, modifying the order of the District Forum in O.P.No.251/2007 dt.19.2.2010, directing the opposite parties to pay a sum of Rs.6,00,000/- towards compensation, otherwise confirming the order of the District Forum. The opposite parties are directed to deposit the entire award amount, within 6 weeks from the date of receipt of the order. There will be no order as to cost in this appeal.
The opposite parties are further directed to desist the practice of printing the important terms and conditions, particularly the terms which will affect the consumer, in tiny letters, which is unreadable, and are directed to print it in a legible manner, which could be readable even by naked eye, and the same is directed to implemented within a period of 6 weeks from the date of this order.
S. SAMBANDAM A.K.ANNAMALAI R. REGUPATHI MEMBER II JUDICIALMEMBER PRESIDENT INDEX : YES / NO Rsh/d/RRJ/FB/ BANK-