State Consumer Disputes Redressal Commission
Inder Nath Gainder vs M/S Thomas Cook (India Ltd.) on 17 June, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 244 of 2013 Date of Institution : 11.06.2013 Date of Decision : 17.06.2013 Inder Nath Gainder s/o Late Sh.Vidhya Dhari r/o H.No.2246, Sector 15-C, Chandigarh. Appellant/complainant V e r s u s 1. M/s Thomas Cook (India Ltd.) Thomas Cook Building Dr.D.N.Road, Mumbai 400001. 2. M/s Thomas Cook ( India) Ltd., Regional Office SCO 28-29-30, Sector 9-D, Madhya Marg, Chandigarh. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. A.K. Sharma, Advocate for the appellant. ------------------------------------------------------------------------------------------------ First Appeal No. : 245 of 2013 Date of Institution : 11.06.2013 Date of Decision : 17.06.2013 Vishambri Lakhanpal, d/o Late Mr. C.R. Lakhanpal, R/o H.No.2246, Sector 15-C, Chandigarh. Appellant/complainant V e r s u s 1. M/s Thomas Cook (India Ltd.) Thomas Cook Building Dr.D.N.Road, Mumbai 400001. 2. M/s Thomas Cook ( India) Ltd., Regional Office SCO 28-29-30, Sector 9-D, Madhya Marg, Chandigarh. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. A.K. Sharma, Advocate for the appellant. ------------------------------------------------------------------------------------------------ First Appeal No. : 246 of 2013 Date of Institution : 11.06.2013 Date of Decision : 17.06.2013 Rajendra Kishore s/o Tikhoo Ram, r/o 5, Sarai Mension Toretium Estate Sidar Grove Chhota Shimla, District Shimla (H.P.)-171002. Appellant/complainant V e r s u s 1. M/s Thomas Cook (India Ltd.) Thomas Cook Building Dr.D.N.Road, Mumbai 400001. 2. M/s Thomas Cook ( India) Ltd., Regional Office SCO 28-29-30, Sector 9-D, Madhya Marg, Chandigarh. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. A.K. Sharma, Advocate for the appellant. ------------------------------------------------------------------------------------------------ First Appeal No. : 247 of 2013 Date of Institution : 11.06.2013 Date of Decision : 17.06.2013 Kanta Lakhanpal w/o Late Major D.P. Lakhanpal, H.No.2246, Sector 15-C, Chandigarh. Appellant/complainant V e r s u s 1. M/s Thomas Cook (India Ltd.) Thomas Cook Building Dr.D.N.Road, Mumbai 400001. 2. M/s Thomas Cook ( India) Ltd., Regional Office SCO 28-29-30, Sector 9-D, Madhya Marg, Chandigarh. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. A.K. Sharma, Advocate for the appellant. ------------------------------------------------------------------------------------------------ BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This order shall dispose of the aforesaid four First Appeal Nos. 244 of 2013 titled as Inder Nath Gainder Vs. M/s Thomas Cook (India Ltd.), and Anr., 245 of 2013 titled as Vishambri Lakhanpal Vs. M/s Thomas Cook (India Ltd.), and Anr., 246 of 2013 titled as Rajendra Kishore Vs. M/s Thomas Cook (India Ltd.), and Anr., and 247 of 2013 titled as Kanta Lakhanpal Vs. M/s Thomas Cook (India Ltd.), and Anr. involving the common question of law, and almost identical facts, arising out of the common order dated 02.05.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the four Consumer Complaints, bearing Nos.68 of 2013, 69 of 2013, 70 of 2013 and 71 of 2013, filed by complainants (now appellants).
2. The facts, being similar and identical, in all the four complaints, culled out, from the Consumer Complaint, bearing No.68 of 2013, titled as Inder Nath Gainder Vs. M/s Thomas Cook (India Ltd.) & Anr., are that the Opposite Parties got published an advertisement dated 28.11.2011, in the Daily Hindustan Times, Chandigarh Edition, under the heading Grand Bargain Europe 15 days, for an amount of Rs.1,51,400/-, for the proposed visit to London, Paris Lucerne, Engelberg, Venice Pisa, Florence, Rome and Vatican City. It was also mentioned, in the advertisement, that it was a guided tour to the above places, with Indian meals, plus free seven day holidays to other Countries such as Slovenia, Hungary, Czech Republic, Austria and Germany. The duration of the tour was 15 days. The complainant was attracted, with the arrangement of the Opposite Parties and contacted their Regional Office, at Chandigarh. He expressed his consent to join the tour. The amount of Rs.40,000/-, was paid by him, to their Assistant Manager- Parneet Kaur. Other documents viz. the passport etc., were given to the Opposite Parties, for arranging Visa/ticket to all the Countries mentioned, in the advertisement. It was stated that, according to the terms and conditions, the responsibility for obtaining visa for the Countries, to be visited was that of the Opposite Parties. It was further stated that the complainant contacted the office of Opposite Party No.2, at Chandigarh, during the months of January to May 2012, to follow up the matter, and also to know about the documents required for traveling.
3. On 26.05.2011 (infact 26.05.2012), the complainant was informed by the Officials of the Opposite Parties, to complete the documents, required to be submitted for processing the visa for visiting UK. The complainant appeared for interview at UK Visa Office, Sector 8, Chandigarh, on 29.05.2012, whereafter, the visa was issued, to him, on 12.06.2012. On 13.06.2012, the Assistant Manager-Parneet Kaur of Opposite Party No.2, informed the complainant, on telephone, to pay an amount of Rs.1,28,940/-, to enable Opposite Party No.2, to arrange Visa for the remaining 7-8 Countries. The complainant paid the said amount of Rs.1,28,940/-, to Opposite Party No.2, at Chandigarh, on 14.06.2012, against receipt. Opposite Party No.2 also obtained documents, from the complainant, for arranging Visa, for rest of the Countries, which were completed on 14.06.2012, itself. The complainant was categorically told that the visas for rest of the Countries mentioned above, would be arranged within 3-4 days.
4. On 18.06.2012 , air ticket was made available to the complainant, to board the flight from Delhi to London via Doha, through Qatar Airlines, which was scheduled to depart from Delhi, on 20.06.2012, at 4.30 AM. According to the complainant, copy of the air ticket Annexure C-3, was not a ticket, but an intimation from Mr.Jitender Choudhary, for making payment of additional amount of Rs.35,000/-, because of delay, in the issuance of Visas, and re-issuance of the tickets.
It was further stated that the complainant was informed by the representative of the Opposite Parties, that the passport and visa would be delivered to him, in time, at Delhi Airport, before boarding the plane.
5. On 18th
-19th June, 2012, since no authorized dealer was ready to give foreign exchange, in the absence of passport and visa/papers, the Opposite Parties gave a cheque of foreign exchange, to the complainant, for undertaking the tour. On 19.06.2012, when the complainant was traveling to Delhi, at about 8.00 PM, it was communicated to him, by an official of Opposite Party No.2, on his mobile phone, that visa had not been granted, and, as such, he could not travel beyond London. The complainant contacted the office guide of the Opposite Parties, at Chandigarh, who told him, that the Opposite Parties did not apply for visas, well in time, and the matter was not followed up properly, which resulted into that situation.
6. On 20.06.2012, the complainant was informed by the officials of Opposite Party No.2, at Delhi, that since the visas were not available, therefore, he was required to pay Rs.50,000/- more, to enable him to join the tour group starting on 20.06.2012, at Paris, foregoing visit to London. When the complainant expressed his inability to pay the said amount of Rs.50,000/-, to the Regional Manager, of Opposite Party No.2, he was told to pay Rs.35,000/-, as per communication dated 21.06.2012. The complainant refused to pay that amount. On 22.06.2012, the complainant came back to Chandigarh, and made a request to the Opposite Parties, to refund the amount paid by him, towards the said tour, alongwith charges for harassment, damages and wastage of time.
7. It was further stated that a cheque, in the sum of Rs.1,53,381/-, was delivered to him, by Opposite Party No.2, through Mrs. Kanta Lakhanpal, after obtaining writing from her, that the amount reflected full and final settlement of the claim, and the complainants would not file any case, in any Court, Tribunal, Forum or Commission etc. It was further stated that the complainant had not given any undertaking, nor authorized Mrs. Kanta Lakhanpal, to execute writing, on his behalf. It was further stated that an amount of Rs.15,559/-, was still outstanding, against the Opposite Parties. It was further stated that the complainant was also entitled to the expenses, incurred while contacting the Opposite Parties, from January 2012 to May, 2012.
8. In Consumer Complaint bearing Nos. 69 of 2013, 70 of 2013 and 71 of 2013 also, a sum of Rs.1,68,940/-, for the aforesaid group tour, alongwith Inder Nath Gainder, Kanta Lakhanpal, Vishambri Lakhanpal and Rajendra Kishore, was paid by each of the complainants, to the Opposite Parties, and, ultimately, the tour was cancelled, as the visa of Inder Nath Gainder, was not granted, in time. The complainants, in these complaints, also received a cheque, in the sum of Rs.1,53,381/-, each, from Mrs. Kanta Lakhanpal, who obtained the same, on their behalf. The Opposite Parties, however, failed to pay compensation for mental agony and physical harassment and refund the remaining amount to the complainants.
9. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, they filed four complaints under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), directing the Opposite Parties, in each complaint, to pay Rs.98,559/-, alongwith interest @12% P.A.; and cost of litigation.
10. The Opposite Parties, in their joint written version, pleaded that the complaint was not maintainable. It was stated that the complainant and his family members/close associates had booked the tour, in question, collectively, as one composite group. It was admitted that a sum of Rs.1,68,940/-, was paid by each of the complainants, for booking the tour, in question. It was further stated that the tour was ultimately cancelled, as the visa was not granted to Inder Nath Gainder, as the documents were not submitted by him, in time. It was further stated that the complainants filed a complaint before the Police Authorities, against the Opposite Parties, despite the fact that they were never at fault, or responsible for delay, in the grant of visa to Inder Nath Gainder. It was further stated that, after harassing and coercing the Opposite Parties, and their employees, the complainants agreed to settle the alleged dispute, by unconditionally accepting the full and final amount of Rs.1,53,381/-, per person. It was further stated that, in their greed to extract more money from the Opposite Parties, the complainant and his group members, had filed separate Consumer Complaints. It was further stated that the privity of contract or relationship of consumers and service providers, if any, between the complainants and the Opposite Parties came to an end, the moment, they (complainants), unconditionally, received the amount mentioned above. It was further stated that the advertisement made it clear that the Grand Bargain Europe tour for 15 days, was available for Rs.1,91,000/-with an offer of free holidays to Far East Countries. It was further stated that the complainant and his group of total four passengers, contacted Chandigarh Branch of the Opposite Parties, and evinced interest, for the pre-arranged group tour Grand Bargain Europe. It was further stated that the group aforesaid was explained and made to understand, the details of the services, which included completely customized trips and pre-arranged group tours, departing on fixed dates. While such tours were more economical for customers, but the same had very strict cancellation policies. It was further stated that the Opposite Parties offered assistance and guidance to their clients, to apply for the required visa, for undertaking a particular tour but the ultimate responsibility of having the requisite visas for undertaking a particular tour, was that of the passengers and the grant or rejection of visas was entirely at the discretion of the concerned Consulate/Authorities. It was further stated that the tour was booked by the complainants, after accepting the terms and conditions contained in Annexure R-1, on 05.12.2011. It was further stated that the complainants group did not supply the documents, until around 22nd May, 2012, despite repeated requests, from the Opposite Parties.. On receipt of the necessary documents, the Opposite Parties, immediately, processed the same and were able to get appointment for submission of the UK visa, for 27.05.2012, and, ultimately, the passports of the complainants group, were received on 11.06.2012. It was further stated that the Opposite Parties, especially, sent their representative to Delhi to submit the visas and documents, before the Swiss Consulate, and were hopeful that the same (Swiss Consulate), if decided to issue the same (visa), it will be released by the evening of 19.06.2012. It was further stated that all the tour documents, including the air tickets, were supplied to the complainants group. It was further stated that the complainants group was informed well, in time, that the Swiss Consulate had not issued the necessary visa, by the evening of 19th June 2012, despite best efforts, which was beyond the control of the Opposite Parties. It was further stated that the Opposite Parties, went out of their way, and made immediate arrangements, for the travel of the complainants group, on the next available flight, on 22.06.2012, so that they could join the tour, from Paris, for which, they were asked to pay the fare difference, for cancellation of tickets, but they did not agree to pay the same. It was further stated that communication to this effect, was made through email dated 22.06.2012, copy whereof is Annexure R-2. It was further stated that, it was, under these circumstances, that when the tour aforesaid, was cancelled, a sum of Rs.1,53,381/-, was paid to each complainant, through cheques, which were received by Mrs. Kanta Lakhanpal, on behalf of all the complainants, who issued the letter Annexure R-4, acknowledging the full and final settlement, on behalf of the entire group. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
11. The Parties led evidence, in support of their cases.
12. After hearing the Counsel for the parties, and, on going through the evidence, and record of the cases, the District Forum, dismissed all the four complaints, as stated above.
13. Feeling aggrieved, the four appeals, referred to above, have been filed by the appellants/ complainants.
14. We have heard the Counsel for the appellants/complainants, in all the four appeals, referred to above, at the preliminary stage, and, have gone through the evidence, and record of the cases, carefully.
15. There is, no dispute, about the factum, that Inder Nath Gainder, alongwith three other complainants, in the connected complaints, booked a group tour Grand Bargain Europe, for the Countries, referred to above. Undisputedly, Inder Nath Gainder, and other three members of the group tour are closely related to each other. There is also, no dispute, about the factum, that a sum of Rs.80,500/- for booking the tour, was paid by each of the complainants. The other three members of the group tour were Kanta Lakhanpal, Vishambri Lakhanpal and Rajendra Kishore.
At the time of making the payment of amount of Rs.80,500/- each, to the Opposite Parties, on 05.12.2011, Inder Nath Gainder, one of the complainants, signed the booking form Annexure R-1 Grand Bargain Europe on behalf of him, Kanta Lakhanpal, Vishambri Lakhanpal and Rajendra Kishore. It was clearly recorded, in Annexure R-1, that On behalf of the above person(s)/(other complainants), I have read and accepted the booking conditions mentioned overleaf and as in Brochure. No doubt, brochure C-1 reveals that All prices are inclusive of visa fees & Taxes. However, from brochure C-1, it is not revealed, that the Opposite Parties took responsibility to make available visas, to the complainants. Even, such condition does not find mention, in the terms and conditions of the booking form. In our considered opinion, the Opposite Parties only offered an assistance and guidance to their clients/complainants, to apply for the required visas, for undertaking a particular tour. The, ultimate, responsibility of having the requisite visas, for undertaking a particular tour, was that of the complainants. The grant or rejection of visas was the sole discretion of the Consulate Authorities. There is nothing, on the record, that the Opposite Parties applied for the Swiss visa of Inder Nath Gainder etc. late. On the other hand, it is evident, that the Opposite Parties applied for the visas, as soon as the documents were supplied to them by the complainants. There was fault on the part of Inder Nath Gainder and others, in not supplying the documents, in time. It was, under these circumstances, that the visas were delayed, and the tour was cancelled. So the plea of the appellants/complainants, that it was the responsibility of the respondents/Opposite Parties, to make available the visas to them, is not tenable. It was not in the hands of the Opposite Parties, to grant or reject the visas, in favour of the complainant, namely Inder Nath Gainder, and his group members. Such plea, therefore, being devoid of merit, must fail, and the same stands rejected.
16. There is, no dispute, about the factum, that a complaint was filed by the complainant, before the Police, as a result whereof, summons were sent to the representative of the Opposite Parties. A compromise was arrived at, between the parties, on 20.09.2012. Mrs. Kanta Lakhanpal, on her behalf, as also on behalf of Inder Nath Gainder, Vishambri Lakhanpal and Rajendra Kishore, received four cheques, in the sum of Rs.1,53,381/-, each, from the Opposite Parties, as is evident from Annexure R-4, the letter written by her, to Thomas Cook (India) Limited, SCO 28-29-30, Sector 9D, Chandigarh, Chandigarh. This letter reads as under:-
Received a Cheque for Rs.153381/- per person (Rupees One lakh fifty three thousand three eighty one pp only), by cheques dated 20/09/2012 from Thomas Cook (India) Limited towards full and final settlement of our claim for Gran Bargain Tour of Europe TCGDL2006 which was not undertaken by me, and other members as per below details
1. INDERNATH GAINDER
2. KANTA LAKHANPAL
3. VISHAMBRI LAKHANPAL
4. RAJENDRA KISHORE I confirm that neither of us i.e. Kanta Lakhanpal me or Mr. Indernath Gainder, Mrs. Vishambri Lakhanapal and Mr. Rajendra Kishore shall not have any grievance against your Company in respect of the said Tour. Furthermore neither me nor Mr. Indernath Gainder, Mrs. Vishambri Lakhanapal and Mr. Rajendra Kishore shall not file any case before any Court/Tribunal/Forum or Commission in respect of Grand Bargain tour of Europe which was not undertaken by us on 20th June 12. We are withdrawing the Complaint addressed by us with immediate effect.
17. From the afore-extracted letter, signed by Mrs. Kanta Lakhanpal, it is evident, that after receiving the amount of Rs.1,53,381/-, per person, through cheques dated 20/09/2012, she on her behalf and other three members of the group, confirmed/undertook that the said amount, had been received towards full and final settlement of their claim for Grand Bargain Tour of Europe TCGDL2006, which was not undertaken by her and other complainants. She further confirmed that they would not have any grievance, against the Opposite Parties, in respect of the said tour. It was also confirmed and undertaken, in this letter, that neither she, nor Mr. Indernath Gainder, nor Mrs. Vishambri Lakhanapal nor Mr. Rajendra Kishore, shall file any case before any Court/Tribunal/Forum or Commission in respect of Grand Bargain tour of Europe, which was not undertaken by them, on 20th June 12. It was further confirmed and undertaken, in this letter, that they were withdrawing the complaint, addressed by them, with immediate effect. Undisputedly, cheques, in the sum of Rs.1,53,381/- each, were received by Mrs. Kanta Lakhanpal, and other three members of the group namely, Inder Nath Gainder, Vishambri Lakhanpal and Rajendra Kishore. They also got encashed the cheques. At the time of encashment of cheques, they neither raised any protest, nor sent a letter of protest to the Opposite Parties. At that time, they did not raise any protest that Smt. Kanta Lakhanpal was not authorized by them, for receiving the amount of refund, on their behalf. In case, they had any objection to the receipt of three cheques, in the sum of Rs.1,53,381/-, each, on their behalf by Mrs. Kanta Lakhanpal, they could raise such a protest or objection at that time. After getting the cheques encashed, they remained silent for a period of about five months, and, ultimately, filed the complaints, on 05.02.2013. Once, they received this amount, through cheques, aforesaid, with their eyes wide open, and encashed the same, without any protest, in our considered opinion, they were estopped from raising the dispute, that they had been paid less amount or that Mrs. Kanta Lakhanpal, was not authorized by them, to receive the same, on their behalf. The District Forum was also right, in holding so. The submission of the Counsel for the appellants, in all the appeals, to the effect that Mrs. Kanta Lakhanpal, was not authorized by them, to receive the amount, on their behalf nor they were bound by her undertaking, therefore, being devoid of merit, must fail, and the same stands rejected.
18. The Counsel for the appellants, in all the four appeals, however, submitted that the appellants, were certainly entitled to compensation, under Section 14(1) (d) of the Act. He further submitted that therefore, there cannot be estoppel against Statute. There is, no dispute, about the factum, that there cannot be estoppel, against Statute, but, in the instant case, at the time of accepting a sum of Rs.1,53,381/-, each, by Smt. Kanta Lakhanpal, on her behalf and the other complainants, she in clear-cut terms, gave an undertaking that none of the group member shall be entitled to any other amount; that no grievance, would be raised against the Opposite Parties, in respect of the said tour; that no case shall be filed against the Opposite Parties, before any Court/Tribunal/Forum or Commission in respect of Grand Bargain tour of Europe, which was not undertaken by them on 20th June 12; and that they were withdrawing the complaint, addressed by them, with immediate effect. A person can always abandon a part of the relief. Such relinquishment/abandonment of a part of the relief does not amount to the violation of provisions of law. At the time of accepting the cheques, each of the complainants, very well knew, as to whether, they were allegedly entitled to any other amount, but, when one of the members of the group, received the amount, on behalf of the same (group), and gave the undertaking abandoning the other claims, they were certainly estopped from claiming the same, later on. Under these circumstances, the submission of the Counsel for the appellants, in all the appeals, in this regard, being devoid of merit, must fail, and the same stands rejected.
19. The District Forum, was, thus right, in holding that the Opposite Parties, were neither deficient, in rendering service, nor indulged into unfair trade practice. The District Forum, was also right, in holding that the complainants, were estopped from raising claim/reliefs, after receipt of the amount of Rs.1,53,381/-, each, through cheques, in the manner, referred to above, and encashing the same. The findings of the District Forum, in this regard, being correct are affirmed.
20. In view of the above discussion, it is held that the order passed by the District Forum, in all the complaints, referred to above, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
21. For the reasons recorded above, all the four appeals, being devoid of merit, must fail, and the same are dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
22. Certified copy of the order, shall be placed, in each of the appeal file Nos. 245 of 2013, 246 of 2013 and 247 of 2013.
23. Certified copies of this order, be sent to the parties, free of charge.
24. The files be consigned to Record Room, after completion Pronounced.
17.06.2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg