State Consumer Disputes Redressal Commission
Cox & Kings Ltd. & Anr. vs Smt.Geeta Agrawal & Ors on 29 May, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/180
Instituted on : 03.04.2018
1) Cox and Kings Limited,
Through : Branch Manager, Branch Office -
Vaman Center, Maroal Makwana Road,
Andheri (East) Mumbai 400059
2) Cox and Kings Limited,
Branch Office at Chhattisgarh,
Through - Authorized Officer,
First Floor, Lalganga Shopping Mall,
G.E. Road,
Raipur (Chhattisgarh) ...... Appellants (OPs)
Vs.
1) Smt. Geeta Agrawal, Aged about 51 years,
W/o Shri Shirish Chandra Agrawal.
2) Smt. Sheena Chavhan, Aged about 28 years,
W/o Shri Mayank Chavhan,
D/o Shri Shirish Chandra Agrawal.
3) Ku. Shilpa Agrawal, Aged about 26 years,
D/o Shri Shirish Chandra Agrawal,
All Three are residents of T.H.-1, Forest Officers Colony,
Medical College Road,
Raipur (C.G.) ... Respondents (complainants)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Sagar Ashirgadhe, Advocate for the appellants (OPs).
Shri Rishiraj Singh, Advocate for the respondents (complainants).
ORDER
DATED : 29 /May/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 02nd January, 2018, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.406/2015. By the impugned order, // 2 // learned District Forum, has allowed the complaint of the complainants and directed that :-
(a) The OPs will jointly or severally pay the entire amount taken by them from the complainants amounting to Rs.3,19,000/- and the additional amount spent by the complainants i.e. Rs.31,751/- i.e. total amount Rs.3,50,751/- (Rupees Three Lakhs Fifty Thousand Seven Hundred Fifty One) in respect of going New Zealand, along with interest @ 6% p.a. from 25.07.2015 till realization.
(b) The OPs will jointly or severally pay a sum of Rs.20,000/- to each complainants towards compensation for mental agony i.e. total Rs.60,000/- (Rupees Sixty Thousand), to the complainants.
(c) The OPs will jointly and severally pay a sum of Rs.2,000/- (Rs. Two thousand) towards cost of litigation, to the complainants.
2. Briefly stated the facts of the complaint of the complainants are that the OPs had proposed the complainants for a Package Tour Spirit of Australia. The complainants had taken information regarding the above package tour and had booked Spirit of Australia in the month of January, 2015. The Booking I.D. No. was 549649. Under the above tour, there was a planning to show some cities of Australia and New Zealand. Under Spirit of Australia Scheme, there was planning to show the Sidney, Melborne and Goldcost and Cames in New Zealand. On 09.01.2015, booking was done and the journey was to be started from 18.03.2015. The above package tour was of 17 days. Raipur Office of the OPs took responsibility to obtain the Visa for the complainants, for which towards first installment on // 3 // on 09.01.2013 a sum of Rs.9,000/- for each person and for second installment a sum of Rs.2,91,000/- for each person was paid to the OPs in which payment in respect of the visa was also included. On 20.01.2015, the complainants talked with Anshul Khare for obtaining Visa, but Anshul Khare was on leave and the other person did not give proper reply, therefore, for the period from 09.01.2015 to 03.02.2015, concrete action could not be taken for the Visa. On 04.02.2015 i.e. after 22 days of the booking Anshul Khare took action for sending documents and on 20.02.2015, application was given to Australian Embassy for Visa. On 24.02.2015 the visa application of Smt. Geeta Agrawal was rejected for technical reasons, whereas prior to taking action for visa, Smt. Geeta Agrawal, had paid a sum of Rs.3,19,000/- to the OPs, but the OPs started taking action for the Visa belatedly. The complainants made contacted with the OPs for visa through phone and email and they continuously contacted with the OPs. Even the prior to beginning of the journey, the OPs committed delay in respect of visa, due to which she could not keep her favour before Visa Office and ultimately journey of Australia was cancelled. For visa on 09.01.2015 a sum of Rs.9,000/- towards first installment was paid and entire amount of Rs.3,19,000/- was paid to the OPs on 13.01.2015 thereafter the complainants were in contact with the OPs through email and the documents relating to visa were sent to the OPs through courier as and when demanded, but the OPs would have demanded those documents at the time of booking. The necessary documents were demanded by the OPs on 04.02.2015 i.e. after 24 days of the booking and even after sending documents by the complainants, the complainants were again and against contacting the OPs and were asking regarding the visa. Due to above delay, it could not be possible to appear before the Australia Embassy // 4 // and to give application for visa, therefore, her visa was rejected. In the meantime, Shri Anil Singh of the Kolkata Office of the OPs demanded the photocopy of the passport, whereas Smt. Geeta Agrawal had already sent all photocopies. On the basis of above, Shri Anil Singh told that visa of New Zealand would be accepted. Till 28.02.2015 again no action was taken for visa of Australia whereas the journey was to be started on 18.03.2012 and there was short time. After passing of time from 09.01.2015 to 28.02.2015, for the remaining time, no action was taken for obtaining visa. If action would have been taken on 09.01.2015 for visa, then Smt. Geeta Agrawal would have sufficient time to get prepare her visa herself, but due to negligence of the OPs and taking action belatedly, the visa of Smt. Geeta Agrawal could not be prepared, for which the employees of the OPs are liable. Due to delay committed by the OPs in obtaining visa of Smt. Geeta Agrawal and she was not informed regarding the same, she could not prepare her visa. The act of the OPs comes in the category of deficiency in service. Ultimately in compulsion, Smt. Geeta Agrawal told the OPs to cancel her entire journey, then Shri Sanjay Singh informed her that advance booking of the hotels and air ticket are done, therefore, they cannot not return any amount, if tour is cancelled, whereas when Smt. Sheena and Ku. Shilpa Agrawal reached to above place of Australia, they found that there was no advance booking. Hotel etc. was not books. Later on Smt. Geeta Agrawal incurred extra expenses of Rs.31,751/- and obtained air ticket and on her own extra expenses she went to New Zealand. In New Zealand, the OPs made arrangement for journey in which complainant no.1 undertook journey with her daughters Sheena and Shilpa. The OPs are responsible for the extra expenses of Rs.31,751/- because the visa for Australia // 5 // could not be availed, the expenses of Rs.3,19,000/- become useless in which air ticket of New Zealand was included. The OPs are liable to return a sum of Rs.31,751/- to the complainants. In Australia and New Zealand, the complainants could not get benefit, as assured by the OPs and the complainants would have deprived from some facilities. In Christchurch and Rotorna, there was no facility of A.C. Room. In the hotels situated at Christchurch and Auckland, the complainants had stayed at double bedroom, whereas booking was done for three persons in triple bedroom. During the course of coming from Carns to Melbourne, Smt. Geeta Agrawal and Smt. Sheena Agrawal, who were vegetarian, could not get vegetarian meals for 12 hours whereas at the time of booking provision was made to provide vegetarian meal to both of them. In Milford Sound Cruse (AUD 265), correction information regarding the meal was not give due to which the complainant had to take meal outside. The complainants had several time waited for room allotment. The complainants received complimentary bag from the OPs after very hard work which were of below standard category. Wheel Chair was not provided by the OPs to Smt. Geeta Agrawal, for which she contacted OPs, due to which the complainants did not enjoy the journey and suffered mental agony. The OPs have obtained a sum of Rs.3,19,000/- from Smt. Geeta Agrawal for both trip of Australia and New Zealand whereas Smt. Geeta Agrawal herself incurred extra expenses of Rs.31,751/- and went to New Zealand and she was deprived from Australia trip. The OPs have committed deficiency in service and unfair trade practice. The complainants contacted the OPs from the date of booking till date of starting of the journey through email. On 20.01.2015, the complainants contacted the OPs through telephone, thereafter email was sent by the // 6 // complainants, on 18.03.2014 email was sent. Thereafter on 12.04.2015, Ku. Shilpa Agrawal sent notice to the OPs in the form of feedback. On 03.06.2015 the OPs sent reply of the same and accepted their mistake. Hence, the complainants filed instant complaint and prayed for granting reliefs as mentioned in relief clause of the complaint.
3. The OPs have filed their written statement and averred that the present complaint is not maintainable for want of jurisdiction as per the agreed terms and conditions between the complainants and M/s Cox and Kings Limited as there is an arbitration clause in the terms and conditions accepted and agreed by the complainants and therefore, jurisdiction of the Civil Courts are barred. The District Forum does not have jurisdiction and barred by Section 11 of the Consumer Protection Act, 1986 to entertain, try and decide the present complaint. There is no cause of action, wholly or in part which arose in favor of the complainants and against the OPs within the jurisdiction of the District Forum. M/s Cox and Kings Limited had its registered office situated within the territorial jurisdiction of District Consumer Disputes Redressal Forum, South Mumbai, from where it carries on business and all the travel arrangements are contracted for and monitored from the mentioned place and hence the said District Consumer Disputes Redressal Forum, South Mumbai would have jurisdiction to entertain, try and adjudicate upon the present complaint, otherwise the arbitration is the only agreed dispute resolution method under the contract between the parties. There is no cause of action wholly or in part that arose in favour of the complainants and against the OPs, hence the present complaint is liable to be dismissed. The complainants have // 7 // not produced an iota of evidence which will show any negligence or any kind of deficiency in service on the part of the OPs. The present complaint is baseless and flagrant abuse of process of law to harass the OPs. The complainants have not come with clean hands they has suppressed material facts from the District Forum. Therefore, the complaint filed by the complainants is mischievous, frivolous and vexatious and is liable to be dismissed under Section 26 of the Consumer Protection Act, 1986. There is no deficiency on the part of OPs as defined in the Act, hence the present complaint is liable to be dismissed From a meaningful reading of the present complaint, it is evident that the complainants have neither alleged any deficiency in service on the part of the OPs and therefore, the present complaint is not maintainable and liable to be dismissed on this ground along. The complainants have not come before the District Forum with the clean hands and is guilty of Suppression Vari, Suggestion Falsi. On the face of the present complaint, it is apparent that the complainants under the garb of the Act, in order to extract and extort money from M/s Cox and Kings Limited (a renowned Multi-National Company having huge turnovers and immense reputation both in the domestic and international market as well), has filed a false and frivolous case against the OPs and M/s Cox & Kings Limited. The complainants are not entitled to any relief whatsoever as claimed by them vide the present complaint. The District Forum, does not have the jurisdiction to entertain and try the present complaint. The present complaint involves complicated questions of facts and requires detailed evidence to be lead by the parties as such could not be decided in summary procedure. There is no cause of action wholly or in part that arose in favour of the complainants and against the OPs. The complainants // 8 // have indulged in misrepresentation and suppression of material facts. The complainants have approached the District Forum with unclean hands and have suppressed material and vital facts. There is no deficiency of service on the part of the OPs, hence the present complaint is not maintainable. The O.P. No.1 conducts the domestic and international tours and provides allied services related thereto. The OPs does not lure its passengers. All the tour packages conducted by the OPs are explained to the tour participants who approached them and after going through the various ranges of products, it is traveler who decides on which tour he has to book and undertake. The complainants booked the tour only after going through the various products offered by the OPs. The complainant booked a tour of "Spirit of Australia" in the month of January for departure schedule on 18th March, 2015 for herself and complainant No.1 and 3. At the time of booking of the aforementioned tour, Ms. Shilpa Agarwal / complainant No.3 was furnished with a copy of Tour Brochure, Price Grid Interalia containing the booking form. The complainant No.3 had read and understood the Booking conditions and duly signed the same in acceptance of its contents thereof for herself and on behalf of complainant No.1 & 2. The said booking conditions constitute a legally binding contract between all the passengers booked on the said tour including complainants and OPs The said tour to "Spirit of Australia" booked by the complainants also had free offer of 5 night's tour to New Zealand. The OPs had never taken the responsibility of Visa as it was clearly made understood to the complainants that the OPs merely act as a facilitator and granting or rejecting the visa is sole discretion of the Consulate. The complainants made payment of a sum of Rs.9,000/- at the time of booking the tour towards the Reservation Fee as per the Payment Schedule // 9 // appearing in the Booking Conditions. The total tour cost of the tour booked by the complainants as per the Price Grid was Rs.1,65,999/- and AUD 2,750 per person against which total payment received was Rs.9,41,650/- from the complainant No.1 to 3. The complainants have not disclosed the correct facts with regard to the visa submissions of complainant No.1, which were done through the OPs, who merely acted as a facilitator. After receipt of the Visa documents from the complainants, an application was made to the Consulate by the OPs. The complainant No.2 (Ms. Sheena Agrawal) herself filled the visa application forms require to be submitted to the Consulate. Thus she was aware and has knowledge of personal information she was sharing of all the three applicants with the Consulate. No applicant can directly go and visit the Consulate to explain their case unless and until they are called for a personal interview. The first payment made by the complainants was towards the reservation fees of all the complainants. The entire payment of Rs.3,19,000/- was not made by the complainants on 13.01.2015. The last payment towards the tour cost was received on 20.01.2015 and payment of Rs.31,751/- was received on 17.03.2015 towards the airfare difference of Complainant No.1. There was no delay in submitting the visa application by the OPs to the Consulate. The complainants did not disclose the fact that earlier the complainant No.1's Geeta Agrawal's Australian Visa was rejected / denied by the Consulate. It is understood that the complainant No.1 had applied for a tourist visa in 2008, however while applying the visa in 2015, said fact was not brought to the notice of the OPs. The complainant No.1 failed to produce the expired original passport citing the reason that it was misplaced. The complainant No.1 got the visa refusal on her earlier passport which she claims of having misplaced. This // 10 // is a very material piece of information which was not disclosed by the complainants for the best reasons known to them and with an ulterior motice. A specimen copy of application form Visitor Visa Tourist Stream Form 1419, require to be filled and submitted by a traveler to the Australian Consulate, who wish to visit Australia. The visa application of complainant Nos.1 to 3 was submitted at the same time at Australian and New Zealand Consulate on the basis of documents submitted by them. A simultaneous application can be made to both the Consulates as the Australian Consulate processed the visa on the notarized copy of the passport, whereas the Consulate at New Zealand requires original passport for processing the visa. Despite giving the checklist of documents, the complainants failed to furnish the documents to the OPs in accordance with the said checklist. The OPs have to take the copies of all the pages of passport as well as they had to get the said documents notarized locally. After receiving the documents, an application was made to the Australian Consulate on the basis of notarized copy of the passport of the complainants and the original passport along with the document was submitted to New Zealand Consulate on 19th February, 2015. The Australian Consulate rejected the Visa of the complainant No.1 Geeta Agrawal, whilst it granted visa to Complainant No.2 & 3. Granting or rejecting the visa is a sole discretion of the Consulate as visa of complainant No.2 and 3 was granted by the Consulate, whereas it was rejected for Complainant No.1. During the time when the application of the complainants was pending with the Australian Consulate, Complainant No.1 received a call from Australian Consulate inquiring about details of her previous visa rejection. The complainant No.1 did not give satisfactory reason satisfying the queries made by the Consulate Officer. As // 11 // mentioned in the Visa refusal letter, the complainant No.1 did not declare the visa refusal. At the request of the complainants, OPs reapplied the visa for complainant No.1, however the same was rejected by the Australian Consulate on 9th March. The complainants cannot hold the OPs responsible for their own mistake and negligence. Whilst the Australian Embassy rejected the visa application of Complainant No.1, the New Zealand Consulate granted visa to complainant No.1 and complainant No.2 & 3. Thus, it is evident from the aforesaid that it is the complainants who have to be blamed for rejection of the visa of complainant No.1 as they tried to mislead the Consulate. The material information is not disclosed by the complainants anywhere in the complaint and they are trying to put the burden of their mistake on the OPs. When first time the visa was applied to Australian and New Zealand Consulate, the original passport was submitted to New Zealand Consulate of all the complainants. Whilst, the application with the New Zealand Consulate of all the complainants was pending, a rejection letter was issued by Australian Consulate of Complainant NO.1. Since the complainant No.1 wanted to reapply her visa, it was necessary to have a notarized copy of the passport. Thus, the OPs would obviously have asked the complainants to provide copies of the passport so that complainant No.'1 visa could be reapplied. The complainants have not narrated the correct facts to the District Forum, but have twisted the facts to suit their cases. The visa of the complainant No.1 was applied twice with the Australian Consulate by the OPs, but both time rejection was received on her passport. On the contrary it is OP's case that complainant No.1 did not disclose about her previous rejection of 2008 as she wanted to use the brand name of OPs to obtain visa in 2015. Over a period of time, the OPs have earned // 12 // impeccable reputation in the travel industry. Thus, the complainant No.1 must have thought that she would use OPs brand name to obtain her visa in which she was not successful earlier. It is evident from the Visa Rejection Letter that it was solely because of the complainant No.1 the visa was rejected by the Consulate. The Australia Tour of the Complainant No.1 was cancelled due to the visa rejection. Since, the Complainant No.1's booking was cancelled at the very last moment for Australian portion, the cancellation charges as per the cancellation policy appearing in the Booking Conditions applies. Since complainant No.1 cancelled her trip due to visa rejection, it was oblivious that her services confirmed for her Australia tour ought to have cancelled by the OPs prior to the departure. Since the complainant No.1 did not travel to Australia due to her visa rejection, she decided to avail the New Zealand portion of her trip which was offered free with the tour "Spirit of Australia". Since the complainant No.1 decided to join the group at New Zealand, it was oblivious that a new ticket from India to New Zealand was required to be purchased by the OPs as her old ticket issued was to Australia. In view of the same, the complainant No.1 was required to pay an additional amount of Rs.31,751/- towards the difference in the airfare. Since the tour had started and group had already left for Australia, the complainant No.1 had to travel alone to New Zealand. The complainants are not entitled for Rs.3,19,000/- and Rs.31,751/- from the OPs. The visa of complainant No.1 was refused due to her own mistake due to which she could not travel to Australia. It was her decision to travel to New Zealand, therefore, she had to make payment of the difference in the airfare which was not forming part of the Tour Cost. There is no cause of action in favour of complainant No.2 & 3 as they departed as scheduled without // 13 // missing any sightseeing and enjoyed all the services as agreed. The complainants cannot hold the OPs responsible for Visa rejection as granting / rejecting the Visa is the sole discretion of the Consulate / Embassy. It is responsibility of the complainants to ensure that the Visa forms are filled up properly. The Consulate does all its background checks and checks the financial stability of the intending tourist, the Consulate also assess the risk as to whether the tourist / visitor is likely to come back to his home country or would abuse the tourist / visitor visa granted to him / her an or would illegally overstay and seek employment in the foreign country. The Visa Officer assess each traveler and their intention and if they have reasonable belief that there is a likelihood of the applicant abusing or misusing the visa granted to him or there is likelihood or apprehension in their mind that the person after completion of the tour is not likely to come back and / or try to seek employment, the visas are denied. The OPs have no role whatsoever to play in the process of grant or denial of visas because each traveler / tourist has his or her own circumstances and situation whereby they have to convince the visa interview officer of their genuine intentions. As soon as the complainants or any other traveler/passenger makes a reservation / booking of their respective holiday package with the OPs, simultaneously they commence its obligation of making necessary hotel room reservation / bookings and airline ticket reservations / booking. The reservation for hotel rooms and airline ticket are required to be made immediately because often due to the holiday rush and peak season travel, room reservation and airline tickets may not be available at a later stage and it is prudent to make the necessary reservation at the earliest so that the passengers departure, holiday and return to India after the holiday are // 14 // confirmed. One of the mandatory requirement of the Consulates, High Commissions for applying for visitors visas in accordance to the visa rules of each country is that each traveler / passenger prior to applying for a tourist / visitors visas is that the person /travelers applying for a tourist / visitors visa must have a valid confirmed round trip return airline ticket reservation and confirmed hotel room reservation / book. The Consulates insist on this so as to ensure that the person to whom they grant a tourist / visitor's visa would return from that country after his holiday and during his / her holiday he would not have proper accommodation. This is one of the many other safeguards that the Consulates takes whilst issuing tourist / visitor visas so as to ensure that the tourist would return to his home country after completion of his / her holiday. In addition to these reasons and also in order to ensure that any of the party making a reservation for their holiday tour package get the reservation of confirmed seats on the airlines so as to enable them to fly to their holiday tour designation, and proper confirmed hotel room reservation, the OPs is required to make the necessary arrangements and reservation and after making these reservation, if any cancellation is done then the respective airlines and / or hotels charge cancellation fees which then have to be passed on to the traveler whose tour was cancelled. The OPs too has certain administrative, processing and other expenses that are required to be made for making these reservation for the persons / travelers who make reservation and / or book holiday tour packages, thus the OPs have formed a cancellation policy so that the passengers / travelers are well aware even prior to making any holiday tour package booking of what the cancellation policy and what the cancellation charges would be entailed once the tour package is confirmed which in any case // 15 // has to be done even prior to applying for a tourist / visitor visa. Each of the Consulates and High Commissions of every foreign country have their own visa application processing fees and visa fees which too have to be paid in advance at the time of submitting the visa application and the Consulate and / or the High Commissions of each of the foreign country as the case may be do not refund any part of the visa fees or the visa application processing fees if the tourist / visitor visa application is rejected by them, thus, it is the Consulates and / or the High Commissions that retain themselves the entire visa application processing fees and visa fees / charges. There is cut throat completion in the market of holiday tour package holidays segment and the cancellation charges as per the cancellation policy are also kept to bare minimum due to the competition and these charges mainly consist of the actual expenditure incurred by the OPs when any confirmed reservation / booking is Cancelled. There is no margin of profit element for the OPs in the component of cancellation charges and in fact many a times due to cancellation, the OPs suffer losses because the cancellation is done at a time of holiday rush and the supplier such as the hoteliers and airlines have a 100% cancellation charges. The details of Triple Accommodation are clearly given in the Booking Conditions signed by the complainants. The complainants before departure were clearly aware about the accommodation which will be utilized by them but never protested about the same. With regard to the food preference, food request was forwarded to airline by the OPs, while booking the tickets. Furthermore, whilst the complainants were on tour, the OPs had again reconfirmed the meal request and wheel chair request for complainant No.1, vegetarian meal request (AVML) for complainant N.2 and Hindu Non-Veg.
// 16 // Meal Request (HNML) for complainant No.3. The OPs performed their part of contract by forwarding the preferences of the complainants to the airlines. Since the OPs does not own the third party services, the complainants cannot hold the OPs responsible for the act of said third parties. If the complainants were not provided with the meals by the airlines, as alleged by them, they can claim compensation from the airlines and not from the OPs. Complainants allegation with regard to Milford Sound Cruise, it is submitted that on the said day as per the itinerary, the lunch was not promised by the OPs. On the said Cruise, there are two variants available. The premium variant attracts a cost of AUD 265, while he lower variant costs 190 and the passenger opts the variant as per their interest. The entire group including the complainant had their lunch on Cruise as per the variants chosen by them. The complainants ill motive can be seen from the fact that they have raised different allegations at different times with an intention to extract money from the OPs against their illegitimate claim. In the e-mail written immediately after return of the tour, the complainants have mainly raised on tour issues, whereas most of those issues are not raised in the complaint filed by the complainants before the District Forum. This clearly establishes the fact that the complainants have made the claim against the OPs merely for the sake of harassment of the OPs. The complainants had informed 100% cancellation on 11th March, 2015 but the complainants were deliberating on alternate travel plans in light of visa refusal of complainant No.1. Therefore, the OPs had to belatedly cancel the services of complainant No.1, which was very close to the departure. Admittedly, the cancellation of confirmed services at the last moments attracts 100% cancellation from the suppliers. No confirmed services were booked for complainant No.1. The complainants are // 17 // not entitled to receive any amount from the OPs. The present complaint should be dismissed with compensatory cost as the complainants have not approached the District Forum with clean hands. The complainants are not entitled for any of the reliefs claim in the instant complaint. The OPs are not liable to pay any compensation whatsoever to the complainants, as the complainants have miserably failed to demonstrate on which grounds they are claiming any compensation after having utilized the tour services and enjoyed the tour which were meticulously provided by M/s Cox and Kings Limited to the complainants. The complainants have not suffered any mental tension or agony on account of alleged so called deficiency of service. There has been no deficiency in rendering services to the complainants. The complainants are not entitled to receive any relief qua compensation from the OPs. The compensation calculated by the complainants is mere exaggerations and without any supporting proof, which proves ulterior motives and malafide intentions of the complainants. The complaint is liable to be dismissed with costs.
4. The complainants have filed documents. Document Ex.P-1 is photocopy of email dated 03.02.3015 sent by Sheena Agrawal, Ex.P-2 is photocopy of email dated 18.03.2015 sent by Shilpa Agrawal, Ex.P-3 is photocopy of email dated 12.04.2015 sent by Shilpa Agrawal to the OPs, Ex.P-4 is reply dated 03.06.2015 sent by OPs on 03.06.2015.
5. The OPs have filed documents. Annexure A is Certified True copy of the Circular Resolution passed by the Board Committee of Cox and Kings Limited on 01st September, 2014, Annexure B is How to chose your holiday // 18 // pearls of wisdom, important note on Visa, How to book, Terms and conditions, Annexure C is Price Grid Winter 2014 Spirit of Australia - 09 days /08 nights, Annexure D is Application for a Visitor visa - Tourist stream, Annexure E is letter dated 24.02.2015 sent by Visa Officer, Department of Immigration and Boarder Protection to Smt. Geeta Agrawal, decision record, Annexure F are letter dated 24.02.2015 sent by Visa Officer, Department of Immigration and Boarder Protection to Ms. Shilpa Agarwal, letter dated 24.02.2015 sent by Department of Immigration and Boarder Protection to Mrs. Seena Agarwal, letter dated 09.03.2015 sent by Visa Officer, Visitor and Temporary Entry Team, Department of Immigration and Boarder Protection, Australian High Commission, New Delhi to Smt. Geeta Agarwal, Annexure H is copy of order dated 12.06.2012 passed in Shri Bharat Sharma, Proprietor Moon Florist Vs. Manager, Cox and Kings Consumer Case (CC) No.416/2010 decided by District Consumer Disputes Redressal Forum, Udaypur, Rajasthan, Annexure I is copy of order dated 07.10.2013 passed in C.C. No.46 of 2013 - Sri M. Ravinder Reddy Vs. G.N.V.D. Ravi Kanth, Manager, Cox and King Limited and others, decided by District Consumer Disputes Redresal Forum-II, Vijaywada, Krishna District, Annexure J are emails.
6. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint of the complainants and directed the OPs to jointly and severally pay the amounts to the complainants, as mentioned in para 1 of this order.
7 In the instant case, the appellants (OPs) have filed an application under Order 41 Rule 27 CPC for taking the documents on record as additional // 19 // evidence at the appellate stage. The documents are copy of email communication between the appellants and respondents dated 16-17/03/2015 and letter from Australian Consulate.
8. We have heard learned counsels for both the parties on the application filed by the appellants (OPs) under Order 41 Rule 27 and have perused the documents, sought to be filed by the appellants (OPs) at the appellate stage. Looking to the facts and circumstances of the case, it appears that the above documents, are essential for proper adjudication of the case. As the above documents are being filed at the appellate stage, therefore, it appears proper to allow the application subject to payment of some cost.
9. Therefore, the application filed by the appellants (OPs) is allowed subject to payment of cost of Rs.3,000/- (Rupees Three Thousand) and the above documents are taken on record as additional documents at appellate stage.
10. Shri Sagar Ashirgadhe, learned counsel appearing for the appellants (OPs) has argued that the complaint is not maintainable before the District Forum. There is arbitration clause in the agreement. The District Forum, Raipur has no jurisdiction to entertain the complaint. The District Forum, Raipur has also no territorial jurisdiction. There is cause of action or any part arose at Raipur, therefore, the complaint is liable to be dismissed on above ground. Shri Sagar Ashirgadhe, has further argued that the complaint is baseless and flagrant abuse of process of law to harass the OPs. The complainants have not come with clean hands they have suppressed material facts before the District Forum. There is no deficiency in service on the part of // 20 // the OPs, as defined in the Consumer Protection Act, 1986. It is apparent that the instant complaint has been filed by the complainants only to extort money from the OPs. The O.P. No.1 conducts the domestic and international tours and provides services related thereto. The OPs does not lure its passengers. All the tour packages conducted by the OPs are explained to the tour participants, who approached them. The complainants booked the tour only after going through the various products offered by the OPs. The complainant No.2 booked a tour of "Spirit of Australia" in the month of January, 2015 for departure schedule on 18th March, 2015 for herself and complainant No.1 & 3. At the time of booking of the aforementioned tour, Ms. Shilpa Agrawal (complainant No.3) was furnished with a copy of Tour Brochure, Price Grid Interalia containing the booking form. The complainant had read and understood the Booking conditions and duly signed the same in acceptance of its contents thereof for herself and on behalf of complainant No.1 & 2. The terms and conditions are binding upon the complainants. The said tour to "Spirit of Australia" booked by the complainants also had free offer of 5 night's tour to New Zealand. The OPs had never taken the responsibility of Visa, as it was clearly made understood to the complainants that the OPs merely act as a facilitator and granting or rejecting the visa is sole discretion of the Consulate. The complainants made payment of a sum of Rs.9,000/- at the time of booking the tour towards the Reservation fees as per the Payment Schedule. The total tour cost of the tour booked by the complainants as per the price grid was Rs.1,65,999/- and AUD 2,750 per person against which total payment received was Rs.9,41,650/- from the complainants. The complainants have not disclosed the correct facts with regard to the visa submissions of complainant No.1, which were done through // 21 // the OPs, who merely acted as a facilitator. After receipt of the Visa documents from the complainants, an application was made to the Consulate by the OPs. Ms. Sheena Agrawal (complainant No.2) herself filled the visa application forms required to be submitted to the Consulate. Thus the complainant No.2 was aware and had knowledge of personal information. No complainant can directly go and visit the Consulate to explain their case unless and until they are called for a personal interview. The first payment made by the complainants was towards the reservation fees of the complainants. The entire payment of Rs.3,19,000/- was not made by the complainants on 13.01.2015. There was no delay in submitting the visa application by the OPs to the Consulate. The complainants suppressed the fact that earlier also, the visa of Smt. Geeta Agrawal (complainant No.1) regarding Australia tour was rejected by the Consulate. The complainant No.1 had applied for a tourist visa in 2008, however, while applying the visa in 2015, said fact was not brought to the notice of the OPs. Smt. Geeta Agrawal (complainant No.1) failed to produce the expired original passport citing the reason that it was misplaced. The complainant No.1 got the visa refusal on her earlier passport, which she claims of having misplaced and this material fact was suppression by the complainant No.1. A specimen copy of application form Visitor Visa Tourist Stream Form 1419, is required to be filled and submitted by a traveler to the Australian Consulate, who wish to visit Australia. The visa application of the complainants was submitted at the same time at Australian and New Zealand Consulate on the basis of documents submitted by them. A simultaneous application can be made to both the Consulates as the Australian Consulate processed the visa on the notarized copy of the passport, whereas the // 22 // Consulate at New Zealand required original passport for processing the visa. Despite giving the checklist of documents, the complainants failed to furnish the documents to the OPs in accordance with the said checklist. After receiving the documents, an application was made to the Australian Consulate on the basis of notarized copy of the passport of the complainants and the original passport along with the document was submitted to New Zealand Consulate on 19.02.2015. The Australian Consulate rejected the visa of Smt. Geeta Agrawal (complainant N.1) whilst it granted visa to complainant No.2 and 3. Granting of rejecting the visa is a sole discretion of the Consulate as visa of the complainant No.2 and 3 as granted by the Consulate, whereas it was rejected for complainant No.1. The complainant No.1 did not give satisfactory reason satisfying the queries made by the Consulate Officer and she mislead the Australian Consulate. When first time the visa was applied to Australian and New Zealand Consulates, the original passport was submitted to New Zealand Consulate of all the complainant. Whilst the application with the New Zealand Consulate of all the complainants was pending, a rejection letter was issued by Australian Consulate of complainant No.1. Since the complainant No.1 wanted to reapply her visa, it was necessary to have a notarized copy of the passport. The complainants have not narrated the correct facts to the District Forum. The Australia tour of the complainant No.1 was cancelled due to this visa rejection. Since complainant No.1's booking was cancelled at the very last moment for Australian portion, the cancellation charges as per the cancellation policy appearing in the Booking Conditions applies. The complainant No.1 cancelled her trip due to visa rejection. Since the complainant No.1 did not travel to Australia due to her visa rejection, she decided to avail the New // 23 // Zealand portion of her trip which was offered free with the tour "Spirit of Australia". Since the complainant No.1 decided to join the group at New Zealand, it was oblivious that a new ticket from India to New Zealand was required to be purchased by the OPs as her old ticket was issued to Australia. In view of the same, the complainant No.1 was required to pay additional amount of Rs.31,751/- towards the difference in the airfare, but the complainant No.1 had refused to pay the same. It is responsibility of the complainants to ensure that the Visa forms are filled up properly. As soon as the complainants or any other traveler / passenger makes a reservation / booking of their respective holiday package with the OPs, simultaneously they commenced its obligation of making necessary hotel room reservation / bookings and airline ticket reservations / booking. The reservation for hotel rooms and airline ticket are required to be made immediately because often due to holiday rush and peak season travel, room reservation and airline ticket may not be available at a later stage. One of the mandatory requirement of the Consulates, High Commissions for applying for visitors visas in accordance to the visa rules of each country is that each traveler / passenger, prior to applying for a tourist / visitors visa, is that the person / travelers applying for a tourist /visitor visa must have a valid confirmed round trip return airline ticket reservation and confirmed hotel room reservation / book. The complainant No.1 visited New Zealand. The complainants are not entitled for refund of any amount as per terms and conditions. The complainants made complaint after completing smooth visit of New Zealand. The complainants had informed 100% cancellation on 11th March, 2015 but the complainants were deliberating on alternate travel plans in light of visa refusal of complainant No.1. Therefore, the OPs had to belatedly // 24 // cancel the services of complainant No.1, which was very close to the departure. Admittedly, the cancellation of confirmed services at the last moments attracts 100% cancellation from the suppliers. The OPs are entitled to deduct 100% amount. The complainants were provided suitable hotels and during the journey period, the complainants did not make any complaint regarding the arrangements and after returning from the journey, the complainants made fals allegations against the OPs. The allegation was afterthought, concocted and frivolous, therefore, the complainants are not entitled to get any relief from the OPs. The OPs did not commit any deficiency in service. The impugned order passed by the District Forum is erroneous and is liable to be set aside.
11. Shri Rishiraj Singh, learned counsel appearing for the respondents (complainants) has argued that the appellants (OPs) had proposed the complainants for a Package Tour Spirit of Australia. The complainants had taken information regarding the above package tour and had booked Spirit of Australia in the month of January, 2015. The Booking I.D. No. was 549649. Under the above tour, there was a planning to show some cities of Australia and New Zealand.. Under Spirit of Australia Scheme, there was planning to show the Sidney, Melborne and Goldcost and Cames in New Zealand. On 09.01.2015, booking was done and the journey was to be started from 18.03.2015. The above package tour was of 17 days. Raipur Office took responsibility to prepare the Visa for the complainants, for which towards first installment on 09.01.2013 a sum of Rs.9,000/- for each person and for second installment a sum of Rs.2,91,000/- for each person was paid to the OPs in which payment in respect of the visa was also included. On 20.01.2015, the // 25 // complainants talked with Anshul Khare for obtaining Visa, but Anshul Khare was on leave and the other person did not give proper reply, therefore, for the period from 09.01.2015 to 03.02.2015, concrete action could not be taken for the Visa. On 04.02.2015 i.e. after 22 days of the booking Anshul Khare took action for sending documents and on 20.02.2015, application was given to Australian Embassy for Visa. On 24.02.2015 the visa application of Smt. Geeta Agrawal was rejected for technical reasons, whereas prior to taking action for visa, Smt. Geeta Agrawal, had paid a sum of Rs.3,19,000/- to the OPs, but the OPs started taking action for the Visa belatedly. The complainants made contacted with the OPs for visa through phone and email and they continuously contacted with the OPs. Even the prior to beginning of the journey, the OPs committed delay in respect of visa, due to which she could not keep her favour before Visa Office and ultimately journey of Australia was cancelled. For visa on 09.01.2015 a sum of Rs.9,000/- towards first instalment was paid and entire amount of Rs.3,19,000/- was paid to the OPs on 13.01.2015 thereafter the complainants were in contact with the OPs through email and the documents relating to visa were sent to the OPs through courier as and when demanded, but the OPs would have demanded those documents at the time of booking. The necessary documents were demanded by the OPs on 04.02.2015 i.e. after 24 days of the booking and even after sending documents by the complainants, the complainants were again and against contacting the OPs and were asking regarding the visa. Due to above delay, it could not be possible to appear before the Australia Embassy and to give application for visa, therefore, her visa was rejected. In the meantime, Shri Anil Singh of the Kolkata Office of the OPs demanded the photocopy of the passport, whereas Smt. Geeta Agrawal had // 26 // already sent all photocopies. On the basis of above, Shri Anil Singh told that visa of New Zealand would be accepted. Till 28.02.2015 again no action was taken for visa of Australia whereas the journey was to be started on 18.03.2012 and there was short time. After passing of time from 09.01.2015 to 28.02.2015, for the remaining time, no action was taken for obtaining visa. If action would have been taken on 09.01.2015 for visa, then Smt. Geeta Agrawal would have sufficient time to get prepare her visa herself, but due to negligence of the OPs and taking action belatedly, the visa of Smt. Geeta Agrawal could not be prepared, for which the employees of the OPs are liable. Due to delay committed by the OPs in obtaining visa of Smt. Geeta Agrawal and she was not informed regarding the same, she could not prepare her visa. The act of the OPs comes in the category of deficiency in service. Ultimately in compulsion, Smt. Geeta Agrawal told the OPs to cancel her entire journey, then Shri Sanjay Singh informed her that advance booking of the hotels and air ticket are done, therefore, they cannot not return any amount, if tour is cancelled, whereas when Smt. Sheena and Ku. Shilpa Agrawal reached to above place of Australia, they found that there was no advance booking. Hotel etc. was not books. Later on Smt. Geeta Agrawal incurred extra expenses of Rs.31,751/- and obtained air ticket and on her own extra expenses she went to New Zealand. In New Zealand, the OPs made arrangement for journey in which complainant no.1 undertook journey with her daughters Sheena and Shilpa. The OPs are responsible for the extra expenses of Rs.31,751/- because the visa for Australia could not be availed, the expenses of Rs.3,19,000/- become useless in which air ticket of New Zealand was included. The OPs are liable to return a sum of Rs.31,751/- to the complainants. In Australia and New Zealand, the // 27 // complainants could not get benefit, as assured by the OPs and the complainants would have deprived from some facilities. In Christchurch and Rotorna, there was no facility of A.C. Room. In the hotels situated at Christchurch and Auckland, the complainants had stayed at double bedroom, whereas booking was done for three persons in triple bedroom. During the course of coming from Carns to Melbourne, Smt. Geeta Agrawal and Smt. Sheena Agrawal, who were vegetarian, could not get vegetarian meals for 12 hours whereas at the time of booking provision was made to provide vegetarian meal to both of them. In Milford Sound Cruse (AUD 265), correction information regarding the meal was not give due to which the complainant had to take meal outside. The complainants had several time waited for room allotment. The complainants received complimentary bag from the OPs after very hard work which were of below standard category. Wheel Chair was not provided by the OPs to Smt. Geeta Agrawal, for which she contacted OPs, due to which the complainants did not enjoy the journey and suffered mental agony. The OPs have obtained a sum of Rs.3,19,000/- from Smt. Geeta Agrawal for both trip of Australia and New Zealand whereas Smt. Geeta Agrawal herself incurred extra expenses of Rs.31,751/- and went to New Zealand and she was deprived from Australia trip. The OPs have committed deficiency in service and unfair trade practice. The complainants contacted the OPs from the date of booking till date of starting of the journey through email. On 20.01.2015, the complainants contacted the OPs through telephone, thereafter email was sent by the complainants, on 18.03.2014 email was sent. Thereafter on 12.04.2015, Ku. Shilpa Agrawal sent notice to the OPs in the form of feedback. On 03.06.2015 the OPs sent reply of the same and accepted their mistake. The OPs committed // 28 // deficiency in service. The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal filed by the appellants (OPs) be dismissed.
12. We have heard learned counsels appearing for both the parties and have also perused the record of the District Forum as well as the impugned order.
13. The OPs raised objection regarding jurisdiction of the District Forum on the ground of arbitration Clause in the terms and conditions and therefore, learned District Forum has no jurisdiction to entertain the complaint. The above contention of the OPs is not acceptable.
14. Section 3 of the Consumer Protection Act, 1986 runs thus :-
"3. Act not in derogation of any other law. - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
15. In Aftab Singh & Others Vs. Emaar MGF Land Limited & Anr. III (2017) CPJ 270 (NC), Hon'ble National Commission has observed thus :-
"52. In view of the foregoing discussion, we arrive at the following conclusions: (i) the disputes which are to be adjudicated and governed by statutory enactments, established for specific public purpose to subserve a particular public policy are not arbitrable; (ii) there are vast domins of the legal universe that are non-arbitrable and kept at a distance from private dispute resolution; (iii) the subject amendment was meant for a completely different purpose, leaving status quo ante unaltered and subsequently reaffirmed and restated by the Hon'ble Supreme Court; (iv) Section 2 (3) of the Arbitration Act recognizes schemes under other legislations that make disputes non-arbitrable and (v) in light of the overall architecture of the Consumer Act and Court evolved jurisprudence, amended Sub-section (1) of Section 8 cannot be // 29 // construed as a mandete to the Consumer Forums, constituted under the Act, to refer the parties to Arbitration in terms of the Arbitration Agreement."
16. In Satish Kumar Pandey & Ors. Vs. Unitech Ltd. III (2015) CPJ 440 (NC), Hon'ble National Commission has observed thus :-
"18. .................As Provided in Section 3 of the Consumer Protection Act, the provisions of this Act are in addition to the other remedies available to a consumer. Therefore, the availability of arbitration as a remedy does not debar the complainant from approaching a Consumer Forum in a case of deficiency in the services rendered to him by the service provider or adoption of unfair trade Practices by him. This issue came up for consideration of the Hon'ble Supreme Court in National Seeds Corporation v. Madhusudhan Reddy & Anr., II (2012) SLT 51= I (2012) CPJ 1 (SC)= (2012) 2 SCC 506, and after taking into consideration the provisions of the Section 8 of the Arbitration Act of 1996 and the Section 3 of the C. P. Act it was held that the plain language of Section 3 of the C. P. Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being I force. The Hon'ble Supreme Court has also held that the complaint filed by a consumer before the Consumer For a would be maintainable despite their being an arbitration clause in the agreement fo refer the dispute to the Arbitrator. In view of the above referred authoritative pronouncement of the hon'ble Supreme Court which was later followed by a Three Members Bench of this Commission in DLF Ltd. v. Mridul Estate Pvt. Ltd. R.P. No. 412 of 2011, decided on 13.05.2013, the aforesaid contention advanced by the learned Counsel for the opposite party is liable to be rejected."
17. In DLF Limited Vs. Mridul Estates (Pvt.) Ltd, III (2013) CPJ 439 (NC), Hon'ble National Commission has observed thus :-
"(i) Consumer Protection Act, 1986 - Sections 3, 21(b) - Arbitration and Conciliation Act, 1996 - Section 8 - Jurisdiction - Valid Arbitration Agreement - Reference of dispute - Maintainability of complaint - Complaint filed by a consumer under C.P. Act would be maintainable and relief cannot be denied by invoking jurisdiction of Section 8 of Arbitration Act, 19986 -
// 30 // Remedy provided under CP Act is a special remedy with objective of redressal of grievances of affected consumers in expeditious and non-expensive manner - If small consumers are relegated to Alternative Dispute Resolution (ADR) mechanism of arbitration, remedy provided under CP Act would become illusionary - Consumer Fora are not bound to refer dispute raised in complaint on application filed under Section 8 of Arbitration Act, 1996 seeking reference of dispute to Arbitral Tribunal in terms of valid arbitration clause in agreement entered into between parties."
18. In Navin Khanna (Dr.) & Ors. Vs. Unitech Reliable Projects Pvt. Ltd. & Anr. III (2016) CPJ 203 (NC), Hon'ble National Commission has observed, thus :-
"(ii) Consumer Protection Act, 1986 - Section 3 - Complaint -
Maintainability - Arbitration Clause in agreement - Complainant can avail the alternative remedy - Complaint maintainable.
19. From the pleadings of the parties, it appears that the complainant booked Package Tour "Spirit of Australia" from the OPs. The complainant booked the Spirit of Australia in the month of January, 2015. The journey was to be started on 18.03.2015 for 17 days. According to the complainants, the OPs did not provide visa to the complainant No.1 and due to delay tactics, and non-cooperation of the OPs, the Australian Consulate rejected the visa of the complainant No.1. The complainants have filed the instant complaint against the OPs on the ground of deficiency in service, therefore the complainants are consumer of the OPs and merely mentioning arbitration clause in the terms and conditions, the jurisdiction of the District Forum is not ousted and the complaint is maintainable before the District Forum.
// 31 //
20. The OPs raised objection that the District Forum, Raipur has no territorial jurisdiction to take cognizance in the complaint, therefore, order of the District Forum is liable to be set aside on sole ground of jurisdiction.
21. Now we shall consider whether the District Forum, Raipur has territorial jurisdiction to entertain the complaint ?
22. The complainants pleaded that the OPs had proposed the complainants for a Package Tour "Spirit of Australia". The complainants had taken information regarding the above package tour and had booked "Spirit of Australia" in the month of January, 2015. The booking I.D. was 549649 The booking was done through O.P. No.2 Cox and Kings Limited, which is situated at First Floor, Lalganga Shopping Mall, G.E. Road, Raipur, which is branch office of O.P. No.1. The complainants specifically pleaded that Raipur office of the O.P. No..1 took responsibility to obtain visa for the complainants.
23. Sub section 2 of Section 11 of the Consumer Protection Act, 1986 runs as follows :-
"(2) A complaint shall be instituted in District Forum within the local limits of whose jurisdiction -
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or, carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the // 32 // District Forum is given, or the opposite parties who do not reside, or carry or business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
24. It appears that the branch office of the O.P. No.1 is situated at Raipur and the O.P. No.1 carried its business through its branch office situated at Raipur. Ex. P-1 are email sent by Sheena Agrawal (complainant No.2) to the OPs. Looking to the above emails, it appears that the booking was done by the complainants at Raipur, therefore, merely presence of arbitration clause or having jurisdiction of Mumbai Courts, is not sufficient to exclude the jurisdiction of District Forum, Raipur. The cause of action had also arosed at Raipur, therefore, District Forum, Raipur is having territorial jurisdiction to take cognizance in the matter.
25. According to the complainants, they talked with Anshul Khare for obtaining visa on 20.01.2015, but Anshul Khare was on leave. The OPs did not do any exercise for obtaining of Visa till 09.01.2015 to 03.02.2015. After 22 days of booking, Anshul Khare had initiated for visa and submitted application on 20.02.2015 before Australian Consulate. The complainants, themselves pleaded that the visa application was rejected by the complainants on technical ground.
26.. The OPs specifically pleaded in their written statement regarding brochure / website information - disclaimer. It runs thus :-
"Brochure / Website information - Disclaimers :
// 33 // .... We do not take any responsibility of third party products displayed on our website and cannot give any assurance or warranty regarding contents, quality or safety of the product in any way, nor would we be liable / responsible in any manner whatsoever for any deficiency, loss damage or injury sustained by you as a result of availing such products and services"
27. Annexure "E" (Page No.112) annexed in the record of the District Forum, is letter dated 24.02.2015 sent by Australian Government Department of Immigration and Boarder Protection to Mrs. Geeta Agrawal (complainant No.1). In this letter it is mentioned thus :-
"After careful consideration of all the information you have provided, I was not satisfied that you met the relevant criteria for the grant of this visa as set out in Australian migration law.
The application was refused because you did not satisfy clause 600.213 of the Migration Regulations 1994 (the Regulations).
The attached Decision Record provide more detailed information about this decision and the applicant(s) it applies to."
28. In the Decision Record (Page No.115), the Migration Regulations 1994, Clause 4020 - Public Interest Criteria is mentioned, in which it is mentioned :-
"From the details provided in your application and supporting documents, I note that you intend to travel to Australia for tourism. In your application form you have indicated that you have not previously been refused a visa for Australia.
Departmental records however indicate that you have applied for and been refused a visa for Australia."
// 34 //
29. The OPs have specifically pleaded that the complainant No.1 did not disclose about her previous rejection of 2008 as she wanted to use the brand name of OPs to obtain visa in 2015. Over a period of time, the OPs have earned impeccable reputation in the travel industry. The complainant No.1 did not disclose about her previous rejection and suppressed material fact, on that ground the visa was rejected by the Australian Consulate. Since complainant No.1 cancelled her trip due to visa rejection, it was oblivious that her services confirmed for her Australia tour ought to have cancelled by the OPs prior to the departure.
30. The OPs have filed terms and conditions, in which it is mentioned :-
"How to Book When a cancellation is made Cancellation charges per person ( Australia & New Zealand) Clear 60 working days or more prior to Booking amount. the date of departure of the Tour or for non-payment of the balance tour cost.
Clear 59 to 41 working days prior to Rs.70,000/-
the Tour departure date.
Clear 40 to 20 working days prior to Rs.80,000/-
the date of departure of tour.
Clear 19 to 10 working days prior to Rs.90,000/-
the date of departure of the Tour.
Less than 10 clear working days prior 100% of Tour cost.
to the date of departure of the Tour.
For tours with Cruise Less than clear 100
80-50 working days (depending on the
cancellation policy of the particular
cruise liner) prior to the date of the
departure of the tour for the Cruise
portion.
When a cancellation is made Cancellation charges per person
(USA and Australia)
Clear 60 working days or more prior to Booking amount.
the date of departure of the Tour or for
non-payment of the balance tour cost.
Clear 59 to 41 working days prior to Rs.70,000/-
the date of departure of the Tour.
// 35 //
Clear 40 to 20 working days prior to Rs.80,000/-
the date of departure of tour.
Clear 19 to 10 working days prior to Rs.90,000/-
the date of departure of the Tour.
Less than 10 clear working days prior 100% of Tour cost.
to the date of departure of the Tour.
For tours with Cruise Less than clear 100
80-50 working days (depending on the
cancellation policy of the particular
cruise liner) prior to the date of the
departure of the tour for the Cruise
portion.
31. The OPs specifically pleaded that the last payment towards the tour cost was received n 20.01.2015 and payment of Rs.31,751/- was received on 17.03.2015 towards the airfare difference of complainant No.1. The visa of the complainant No.1 was rejected by the Australian Consulate and the visa to complainant No.2 & 3 was granted by the Consulate. During the pendency of visa application of complainant No.1, she received call from Australian Consulate inquiring about details of her previous visa rejection. The complainant No.1 did not give satisfactory reason satisfying the queries made by the Consulate Officer, therefore, the Australian Consulate rejected the visa of the complainant no.1 on 9.03.2015 on the ground that "Based on departmental information currently available to me, your application is likely to be refused on the grounds that you do not satisfy criteria for this class of visa because you do not satisfy public interest criterion 4020 in Schedule 4 of the Migration Regulation, 1994. You do not satisfy public interest criterion 4020 in Schedule 4 of the Migration Regulations 1994 as you have applied for the visa within 3 years of refusal of visa on the basis of false, misleading or incorrect information."
// 36 //
32. It appears that the visa to the complainant No.1 was refused by the Australian Consulate on the ground that false and misleading information was given by the complainant No.1. Since the complainant No.1 decided to avail New Zealand portion, for that purpose a new ticket from India to New Zealand was required to be purchased by the OPs, initially old ticket was issued for Australia. Therefore, the complainant No.1 is required to pay addition amount of Rs.31,751/- towards difference in the air fare. Since tour had started and group had already left for Australia and the complainant had to travel to New Zealand, therefore, the complainant No.1 is not entitled to get any amount from the OPs. According to the terms and conditions, the OPs are entitled to deduct 100% amount after cancellation of the ticket and visa was not granted to the complainant No.1. The complainant No.2 and 3 had already availed Package Tour Spirit of Australia, but the complainant No.1 could not avail the same on account of negligence on her part and visa was not issued to her. Therefore, the OPs have not committed any deficiency in service. The impugned order passed by the District Forum, is erroneous and is liable to be set aside.
33. The complainants also made allegation that the OPs had not provided good hotel. The OPs provided double bed room instead of triple bed room. The above contentions of the complainants are not acceptable. The complainants never made complaint regarding hotel and providing food facility during the journey and after returning from the journey, the allegation was made by the complainants. If any deficiency in service was committed by the OPs during New Zealand journey of the complainants, certainly the // 37 // complainants would have made complaint before representative of the OPs, but no such type of complaint/ representation was made by the complainants to the OPs, therefore, mere making allegation that the OPs did not provide suitable hotels, lunch or dinners, is not acceptable. The complainant No.2 & 3 had already availed the tour facility and they went to Australia and New Zealand. The OPs provided the complainant No.2 & 3 suitable hotels and they visited the places, which are mentioned in the tour package, therefore, the learned District Forum, has erroneously awarded the amount towards compensation for mental agony, to the complainant No.2 & 3. The complainant No.1 herself was negligent for not obtaining the visa, therefore, the complainants are not entitled to get any reliefs from the OPs. 34 Hence, the appeal filed by the appellants (OPs) is allowed and the impugned order dated 02.01.2018 passed by the District Forum, is set aside. Consequently, the complaint filed by the respondents (complainants), shall stand dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel)
President Member Member Member
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