State Consumer Disputes Redressal Commission
M/S. Cox And Kings Ltd. vs Goutam Mullick on 2 August, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/569/2017 ( Date of Filing : 18 May 2017 ) (Arisen out of Order Dated 30/01/2017 in Case No. CC/513/2013 of District Kolkata-I(North)) 1. M/s. Cox and Kings Ltd. 6, Little Russel Street, Kolkata - 700 071, rep. by its General Manager. 2. The Manager, Cox & Kings Ltd. Turner Morrison Building, 16, Bank Street Fort, Mumbai - 400 001. ...........Appellant(s) Versus 1. Goutam Mullick 27A, Nani Gopal Roy Chowdhury Avenue, C.I.T. Road, Kolkata - 700 014, W.B. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Sudip Bose, Advocate For the Respondent: H.Brahmachari, Advocate Dated : 02 Aug 2018 Final Order / Judgement
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of Opposite Parties to impeach the final order/judgment being Order No. 22 dated 30th January, 2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I (in short 'Ld. District Forum') in Consumer Complaint No. 513 of 2013. By the impugned order, the Ld. Ld. District Forum allowed the complaint lodged by respondent Shri Goutam Kumar Mullick under Section 12 of the Act with certain directions upon the opposite parties/appellants like - (i) to refund a sum of Rs. 3,98,754/-; (ii) to pay compensation of Rs. 50,000/- and (iii) to pay Rs. 5,000/- as litigation cost within 30 days from date otherwise the amount shall carry interest @ 10% p.a. till the date of realisation of the same.
The respondent herein being complaint lodged the complaint before the Ld. District Forum stating that for the purpose of visiting the United States of America on tour, he visited the office of Cox and Kings sometime in the month of April, 2013 for having firsthand knowledge and information about the journey and its itinerary. On 06.04.2013 for the purpose of said tour, the complainant paid an amount of Rs. 40,000/- as advance for booking for the tour programme and subsequently paid the balance sum of Rs. 3,58,754/- aggregating to Rs. 3,98,754/-. The complainant has stated that he was assured that all necessary arrangements and formalities including procuring VISA would be performed by the opposite parties and it would be their sole responsibility to make passage for the journey. The complainant states that it was not known to him that he would be directed to the VISA Office for an interview in obtaining VISA. The complainant was served with appointment of confirmation letter dated 29.04.2013 for VISA appointment. Subsequently, the opposite parties informed through E-mail that the VISA was rejected. Due to rejection of such VISA, the opposite party deducted a cancellation charge of Rs. 1,10,508/- from the total deposited amount of Rs. 3,98,754/- and further pressurising the complainant to accept Rs. 2,88,246/- after deduction. The complainant submits that he had long cherished desire in his mind to visit USA but for the non-performance, inactivity and deficiency on the part of opposite parties the tour could not be materialised despite huge amount was spent for the purpose. Therefore, the respondent approached the Ld. District Forum with prayer for several reliefs, viz.- (a) a direction upon the opposite parties to refund Rs. 3,98,754/-; (b) a direction to pay compensation of Rs. 1,00,000/- for harassment and mental agony and (c) to pay Rs. 20,000/- as litigation cost.
The appellants being opposite parties by filing a written version resisted the contention of the complainant by stating that knowing fully the terms and conditions of the booking, the complainant agreed to pay the amount. As per procedure for USA VISA, the complainant was required to attend the VISA interview and accordingly interview was held but the VISA was rejected on consecutive two times for which the tour was cancelled 26 days prior to the date of departure. Therefore, as per cancellation policy the amount of Rs. 70,000/- + GST of 12.36% was deducted and after deduction the complainant was informed to accept the amount. The opposite parties have stated that there was no deficiency in services on the part of them.
Basing upon the pleadings, evidence on record including the documents annexed therewith the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite parties, as indicated above. Challenging the said order, the opposite parties have come up in this Commission with the present appeal.
Mr. Sudip Bose, Ld. Advocate for the appellants has submitted that the Ld. District Forum has failed to appreciate that at the time of booking the 'American Splendors Tour' the respondent was furnished with a copy of the booking form, how to choose your holiday, Pearls of wisdom, important note on VISA, how to book rules, terms and conditions referred to as booking conditions etc. After reading and understanding the contents of the booking conditions, the respondent signed the documents for himself and accepting booking conditions without raising any objection in any manner whatsoever. Therefore, the terms and conditions have binding effect upon the parties to the case. Therefore, Ld. District Forum while awarding the respondent the entire tour cost of Rs. 3,98,754/- failed to observe that as soon as the respondent or any other traveller makes a reservation/booking for their respective package, the traveller commences its obligation of making necessary holiday room reservations/bookings and airline tickets reservation/bookings. Expanding his submission, Ld. Advocate for the appellants has submitted that the reservation of the holiday rooms and airline tickets are required to be made immediately because due to the holiday rush and pick season holiday room reservation and airline booking may not be available at a later stage. Ld. Advocate for the appellants drawing my attention to Clause 2 of important note on VISA has categorically submitted that the Cox and Kings in no way responsible for rejection of VISA of the respondent and as such the impugned order should be set aside.
Per contra, Mr. Hiranmoy Brahmachary, Ld. Advocate for the respondent has contended that the appellant was grossly indifferent and deficient in rendering services resulting to cancellation of the tour by the respondent despite payment of entire amount of Rs. 3,98,754/- before hand and as such the impugned order based on proper reasoning should not be interfered with.
I have given due consideration to the submission made by the Ld. Advocates appearing for the parties and seen the materials on record.
The materials on record indicate that the respondent approached the appellants for booking of 'American Splendours with Free Canada and Bahamas Cruise' which was scheduled to depart on 06.06.2013. Evidently, on 16.04.2013 the respondent booked the tour by making payment of Rs. 40,000/-. The evidence on record also speaks that on 29.04.2013 the respondent has paid another sum of Rs. 3,58,754/- aggregating Rs. 3,98,754/- for the purpose of said tour. Immediately the respondent handed over his passport to the Cox and Kings, for referring the matter to the VISA Officer, USA Consulate at Kolkata.
Subsequently, the respondent had appeared before the interview for VISA but the Consulate General of USA at Kolkata refused to give VISA to the respondent on the ground that he could not convince the Consular Officer that satisfies all the requirements and as such VISA of the respondent was refused. Immediately, the respondent wrote a letter to the Manager, Cox and Kings (undated) requesting them to apply for USA VISA again and agreed to pay fee to that effect. But second time also the VISA was rejected by USA Consulate on 10.05.2013. On that date, the respondent wrote another letter to the Manager, Cox and Kings, Kolkata requesting them to minimise his cancellation charges and refund him the paid amount at the earliest.
Now, the question comes whether the Cox and Kings, Travel Agency is responsible for non-obtaining VISA for the respondent? In this, regard it would be pertinent to have a look to Clause 2 of the 'Important Note on VISA' which provides-
"2. Does Cox and Kings guarantee VISA?
There is no guarantee that Cox and Kings can get the VISA for you. Our role is only to assist you to submit a VISA application which is correctly filled and signed by you. Embassies and Consulates have the sole jurisdiction and authority for granting VISAs. VISAs can take up to 2 to 3 months to be granted/returned".
It is trite law that the parties are bound by the terms of agreement. When either of the parties did not pick up any quarrel with the terms and conditions of the agreement, they are certainly bound to follow the terms and conditions contained in the agreement. In a case reported in AIR 1996 SC 2508 (Bharti Knitting Co. - vs. - DHL World Wide Express Courier Division of Airfreight Ltd.) the Hon'ble Supreme Court has observed thus:-
"It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F.Nariman, Ld. Senior Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true, as contended by Mr. M.N.Krishanmani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon it own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract"
Therefore, in accordance with the terms and conditions of the agreement, the appellants cannot be held responsible for failure on the part of respondent in securing VISA from USA Consulate. In this context, it would be pertinent to record that the respondent booked the tour 51 days prior to the journey. Therefore, in accordance with the Clause 'how to book' when a cancellation was made 26 days prior to the date of departure of the tour, as per terms and conditions of the agreement the appellants did not commit any error by deducting charges of Rs. 70,000/- and GST of 12.36% applicable over the part mentioned charges as per terms of the agreement. A person who signed a document cannot take the plea that he has no knowledge about the precise legal effect of it.
The Ld. District Forum has failed to consider that the granting of VISA does not fall within the domain of travelling agency. The VISA was rejected by the USA Consulate at Kolkata on consecutive two occasions due to the reasons stated in the VISA rejection letter. Moreover, the Ld. District Forum did not take note of the fact that after rejection of VISA on the second time, the respondent himself wrote a letter to the Manager of the Travelling Agency requesting them to minimise the cancellation charges which in turn means that the respondent was fully aware that some amount for cancellation charges as per agreement would be deducted from the amount paid by him towards the tour.
On evaluation of the materials on record and having heard the Ld. Advocates appearing for the parties I am of the view that the Ld. District Forum has misdirected itself in appreciating the matter from real perspective. In fact, the appellant was quite justified in deducting the amount of Rs. 1,10,508/- as levied for cancellation charges of Rs. 70,000/- per person plus 12.36% GST as per terms of the agreement. So, as there was no deficiency on the part of the appellant, the Ld. District Forum has committed an error by awarding compensation of Rs. 50,000/- and litigation cost of Rs. 10,000/-.
In view of the above, the appeal is allowed on contest in part with a direction upon the appellants/opposite parties to refund Rs. 2,88,246/- along with an interest thereon @ 8% p.a. from the date of payment till its realisation. The said amount must be paid within sixty (60) days from date. The appellants are at liberty to withdraw the amount of Rs. 3,98,754/- and accrued interest thereon deposited by them by Order No. 06 dated 09.01.2018 from this Commission.
The Registrar of the Commission is directed to send a copy of this order to the District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER