State Consumer Disputes Redressal Commission
Cox And Kings (India ) Ltd And Others vs Dr. Sainath And Others on 5 March, 2012
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. DATED THIS THE 05th DAY OF MARCH 2012 PRESENT THE HONBLE MR.JUSTICE K.RAMANNA : PRESIDENT SMT.RAMA ANANTH : MEMBER Appeal No.753/2011 1. Cox and Kings ( India ) Ltd Turner Morrison Building No.16, Bank Street,Fort, Mumbai 400023.India, rep.by Country Head. 2. Cox and Kings( India) Ltd., Turner Morrison Building No.16, Bank Street,Fort, Mumbai 400023.India, Rep.by Senoior Manager(legal). 3. Cox and Kings( India) Ltd., No.22,BMH Compound, K H Road, Bangalore-560027 Rep.by Branch Manager. (By Shri/Smt Lexplexus) 1. Dr. Sainath s/o Satagouda Patil, R/o.Patil nursing Home, Ashoknagar,Nipani,Chikodi,Belgum. 2. Dr.Seema W/o.Sainath Patil, R/o Patil Nursing Home, Ashoknagar,Nipani,Chikodi,Belgum. 3. Sri.Shanmukh Maganahalli R/o Vineetha Tours Interational, No.731/1,Mandipet, Davangere- 577001, Karnataka. (By Shri/Smt D Ravikumar Gokakaka) Opposite Party No.1, 2 & 4 before the DF .Appellant/s -Versus- Complainants before the DF .Respondent/s O R D E R
HONBLE JUSTICE MR.K. RAMANNA : PRESIDENT This appeal is filed by Ops 1, 2 and 4 to set aside the order dated 4.11.2010 passed by the DF, Belgaum in Complaint No.564/09, whereby complaint filed by Respondent No.1, Dr.Sainath came to be allowed directing the appellants and OP-3 jointly and severally to pay a sum of Rs.1,06,200/- to the complainants with interest at the rate of 10% pa from the date of completion of tour that is from 17.7.2007 till realization and to pay the same within a month from the date of order and further directed the Ops jointly and severally to pay sum of Rs.3000/-to the complainants as compensation towards mental agony and inconvenience caused within a month from the date of order failing which the amount will carry interest at the rate of 10% pa and also to pay Rs.2000/- towards litigation expenses. Being aggrieved by the sid order, the appellants have come up with this appeal mainly on the ground cash back voucher is issued to the customer on receiving full payment within 20 days from the date of booking and that the respondent knowing fully the said terms and conditions failed to make a payment within stipulated time. Under the terms and conditions of the cash back voucher he is not entitled seek refund of 30%.
2. There is a delay of 76 days in filing this appeal.
The appellant also filed an application under Section 5 of the Limitation Act to condone the delay supported by an affidavit of one Mr.M.Raghupathi, Constituted Attorney of the appellant explaining the reasons for the delay in preferring this appeal.
3. After service of notice Respondent Nos.1 and 2 appeared through a counsel. R-3 duly served but remained absent. Hence we have heard the arguments of the learned counsel for the appellants and respondent Nos.1and 2 and perused the records.
4. During the pendency of the appeal the respondent counsel filed the statement of objections in the form of affidavit of R-1 opposing the appeal and sought for dismissal of the appeal. Therefore, the point that arises for our consideration in this appeal is to consider is that whether:
a) the appellant has shown sufficient and reasonable grounds to condone the delay of 76 days in preferring this appeal?
b) The District Forum is justified in allowing the complaint filed by Respondent Nos. 1 and 2?
5. Point a) The appellant in support of IA has filed the affidavit of Constituted Attorney of the appellant wherein he has stated that the order passed by the DF on 4.11.2010 and received the certified copy on 10.11.2010. The Counsel who represented the appellants before the DF forwarded the certified copy of the order to the Bangalore Office of the appellants. The Bangalore Office of the appellants sent the papers to the Legal Department of the appellants at Mumbai for taking a decision and after series of correspondence with the advocate and the Head of the Department appeal came to be filed.
The reason assigned by the appellant for the delay of 76 days is very vague and unbelievable. Therefore the IA filed by the appellant for condoning the delay is liable to be rejected. Accordingly it is rejected.
6. Point b) It is an undisputed fact that the appellants published an advertisement in the newspaper regarding European Splendor. Accordingly complainants 1 and 2 who are none other than respondent Nos. 1 and 2 booked the tour on 21.1.2007. On that day a sum of Rs.75000/- paid through a cheque drawn at Nippani in favour of the appellants. The same was encashed by the appellants. The remaining amount agreed to be paid within 45 days. Therefore Respondent Nos. 1 and 2 deposited a sum of 2,79,000/- on 3.2.2007 and in all paid a sum of Rs.3,56,000/-. The tour was commenced on 28.6.2007 and completed on 17.7.2007.
7. On completion of the tour the appellants have to refund 30% as per the offer but in spite of repeated requests, appellants have failed to pay the amount which is not in dispute. The short point to be considered is that whether the respondents 1 and 2 have paid the remaining tour expenses of Rs.2,79,000/- within 45 days prior to commencement of the tour.
8. The defense taken by the appellants before the DF as well as in the grounds in the appeal memorandum that the respondents have not paid the tour expenses within twenty days of the booking and therefore they are not entitled for payment of 30% of cash back benefit. It is further contended by the learned counsel for the appellant that the respondents booked the tour on 21.1.2007 and paid Rs.75,000/- on the same day. But on 1.2.2007 paid the remaining amount of Rs.2,79,000/- through a cheque to avail the offer of 30% cash back offer. According to the appellants the respondents are not entitled to get the cash back offer.
9. Whereas, the learned counsel for the respondent Nos. 1 and 2 contended that as per booking Form 07 that is Annexure B, he booked the tour programme for himself and his wife R-2 and he has issued a cheque and the same was encashed by the appellants on 1.2.2007 and further sum of Rs.2,79,000/- paid to the appellants on 3.2.2007 within 13 days.
Therefore, even if it is agreed that the tour expenses shall be paid within 45 days, the respondents paid the amount within 13 days.
10. In order to appreciate the contention of the appellants, we have gone through Booking Form. Respondents 1 and 2 booked the tour European Splendor on 23.1.2007 for himself and his wife, R-2 herein. Booking Form enclosed with information HOW TO BOOK signed by its sales officer and Respondent NO.1. Under the Heading BALANCE PAYMENT INVOICES SERVICE VOUCHERS: For DUNIYA DEKHO all services will be as per those specified / confirmed and paid for as per the invoices and service Voucher, reads as under:-
A service vouchers is the written confirmation of your tour and entitles you to travel on the tour and must be presented by you to the Cox and Kings tour manager or service provider as applicable on the first day of the tour. Once you made the balance payment in full you will receive the service vouchers with your air tickets four days prior to your departure provided you adhere to the time schedule of the documentation and payments in full including the foreign currency components in form of travellers cheques only. No service will be provided if the service voucher in original is not in your possession.
Balance payment towards the cost of your tour (INR & USD / EURO/ GPS or any other foreign currency as contemplated vide the price grid) must reach us at least 45 days prior to the departure of your tour. If the booking of the client is accepted less than 45 days prior to the departure, the client shall make full payment of the tour cost including foreign exchange, component and deposit at the time of booking.
11. Therefore, in view of the fact that R-1 has paid the expenses / balance payment within 13 days from the date of booking without availing 45 days is entitled to 30% of the offer made by the appellants and therefore he is entitled to get the refund of the same. Therefore, the DF has rightly not accepted the defense taken by the appellant / Ops. Therefore, the submissions made by the learned counsel for the appellant cannot be accepted and the same is rejected.
12. Of course, the appellants who are the Ops before the DF have taken a defense before the DF that the complaint filed by the complainants has no territorial jurisdiction to entertain the complaint and that the complaint is barred by time. In this connection the very point has been raised by the Ops by filing an application to dismiss the complaint on the point of territorial jurisdiction.
But the DF vide its order dated 21.4.2010 dismissed the said application holding that the DF has got territorial jurisdiction. The very appellant / Ops against the said order has not challenged by way of revision.
Further more, the cause of action has arisen within the jurisdiction of the District Forum, Belgaum. Therefore, we do not see any factual or illegal infirmity in the order under challenge passed by the DF to come to a different conclusion than that of the conclusion arrived by the DF and therefore the appeal is liable to be dismissed.
Accordingly, we pass the following:
O R D E R Appeal is dismissed. The order passed by the District Forum, Belgaum in Complaint No.564/2009 is confirmed. The parties are directed to bear their own costs.
The amount deposited by the appellant in this appeal shall be transferred to the DF to enable the DF to pay the same to Respondents 1 and 2 / complainants after due notice to them.
PRESIDENT MEMBER Nrr*