State Consumer Disputes Redressal Commission
Branch Manager, Thomas Cook (India) Ltd vs Niravkumar Piyushkumar Shah on 14 August, 2024
A/16/689
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/16/689
(Arisen out of order dated 01/10/2015 in Complaint No.105 of 2014 passed by the
District Consumer Commission Sangli)
1. Branch Manager,
Thomas Cook (India) Ltd.,
R.D. Vichare Complex,
Near Central Bus Depot, Navin Shahupuri,
Kolhapur - 416 002.
2. Branch Manager,
Thomas Cook (India) Ltd.,
G8/9, Raisan Prestige,
Opp.Damini Hotel, Tarabai Park,
Kolhapur 416 003.
3. The Managing Director,
Thomas Cook (India) Ltd.,
Registered Office, D.N. Road,
Fort, Mumbai 400 071. ....... Appellant(s)
Versus
1. Niravkumar Piyushkumar Shah,
2. Shruti Niravkumar Shah,
(Maiden Name Shruti Uttamchand Jain)
Residing at:
16/A, Madhukunj Society,
Kanya Chatralay Road,
Unj 384 170, District Mehsana,
Gujrat.
.........Respondent(s)
BEFORE:
Justice S.P.Tavade - President
Poonam V. Maharshi - Member
1
A/16/689
For the Appellant(s) : Advocate Anita Marathe
For the Respondent(s): None.
ORDER
(14/08/2024)
Per Hon'ble Mr. Justice S.P. Tavade - President
(1) Being aggrieved and dissatisfied with the order passed by the District Consumer Disputes Redressal Commission, Sangli in Complaint No.105 of 2014 the original opponent preferred this appeal. Parties to this appeal shall be called and referred as per their original status in the complaint.
(2) The opponent is travel agency. It arranges tour for people. The Complainant had booked holiday tour under scheme European Swiss Hallmark 17 nights and 18 days tour to UK and other countries. It was condition precedent that the passenger must have valid Visa at the time of travel. It was mandatory to submit all Visa documents at least 60 days prior to the departure. Accordingly, the complainants had submitted the documents and applied for the visa. It was contended that the opponent was not responsible for non-issuance of Visa due to receipt of incomplete or delayed documents from the clients. It was contended that there was possibility that Consulate may ask the passengers to appear for a personal interview and it was sole discretion of the Consulate Authority to issue Visa. It was contended that the complainant had booked tour by making payment of Rs.1,00,000/- and in all the complainants deposited Rs.1,00,000/- with the opponent for the tour and also submitted documents. Before travel programme the application of complainants for Visa was rejected by the U.K. Consulate. Similarly, the Schengen visa was rejected. It was contended that the opponent had given option to the complainants 2 A/16/689 to continue the tour with multiple entry Schengen visa except U.K. but the Schengen visa was not possible, hence, the tour was cancelled. It was contended that the opponent had booked air-ticket and made hotel arrangement for the complainants and they had to cancel the same, therefore, he incurred expenses more than Rs.1,00,000/- for the complainant. The Complainant had sought refund of the booking amount but it was rejected on the ground that the opponent had spent more amount for booking of the complainants and ultimately, the said Air-booking as well as hotel booking was cancelled. Hence, the opponent refused to refund the amount. It was contended that the complainants were liable to pay Rs.60,000/- to the opponent for cancellation of tour.
(3) As the opponent refused to refund the amount, the complainants filed the complaint before the District Commission and claimed refund of the amount. It was contended that the opponent had given assurance that they would secure the Visa for the complainants and for that they had charged some amount from the complainants. It was contended that the complainants were not responsible for the rejection of Visa. It was contended that the opponent failed to secure visa for the complainants, hence, the opponent was liable for refund of amount, compensation and costs to the complainant.
(4) Heard advocate for the appellant/opponent and respondents/complainants remained absent in spite of service of notice.
(5) The advocate for the opponent vehemently submitted that the complainants are resident of Unj, District Mehsana in Gujarat. They had booked their tickets from the office of opponent at Kolhapur. Complaint was filed before the District Commission at Sangli, which had no jurisdiction to 3 A/16/689 entertain the complaint. It is also contended that the notice was issued to the opponent by the Advocate from Sangli and probably that was the reason for filing of complaint at Sangli.
(6) On perusal of the complaint it appears that the complainants contended that the Sales Executive of the opponent got form executed from the complainants at Sangli. It is also contended that the Cousin of the complainants was resident of Sangli. Hence, the documents were executed at Sangli. Thus, the complaint was filed at Sangli. There is no evidence on record to show that the application for tour was signed at Sangli by the complainants. Merely because the brother of the complainants was staying at Sangli, is no ground for filing complaint at Sangli. In fact the complaint should have been filed at Kolhapur.
(7) The opponent has relied on the ratio laid down by the Hon'ble National Commission in the case of New India Assurance Co. Ltd. Vs Jeevan Bharati in First Appeal No.169/2007 wherein the complaint was filed other than the place where the appellant had branch office. The branch office of the appellant was at Ambala but the complaint was filed at Delhi wherein it was held that the expression Branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. So, it was held that the complaint should have been filed at Ambala, Haryana instead of filing at Delhi. At this point, we will have to see the provisions of Section 11(2) of the Consumer Protection Act which speaks that complaint shall be instituted in the District Commission within the local limits jurisdiction A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction:
4A/16/689 "(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 the 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 District Forum is given, or the opposite parties who do not reside, or carry on 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."
(8) In present case there is no office or branch office of opponent at Sangli.
Admittedly, the branch office of the opponent is situated at Kolhapur, the complaint ought to have been filed in Kolhapur. The explanation given by the complainant is that his brother stays at Sangli and he entered into contract with opponent at Sangli, therefore, he filed complaint at Sangli is not valid ground for filing complaint at Sangli. Therefore, the District Commission at Sangli had no jurisdiction to file complaint.
(9) Learned advocate for the appellant has also submitted that the Complainant had booked tour for UK and other countries under its tour known as Swiss Hallmark which was to start on 24/06/2012. It was 18 days tour for which the opponent had charged Rs.2,25,000/- each from the complainants. It was including Air ticket, charges of stay, food, local taxes, travelling 5 A/16/689 expenses. It was also included medical insurance and Visa charges. It is also admitted fact that the complainants had paid Rs.1,00,000/- for booking. Admittedly, booking was done on 02/04/2012. It was well within time. The complainants had filed an application for Visa . Accordingly UK Consulate had called the complainants at Ahmedabad for interview on 21/05/2012 but the Visa was rejected and said fact was communicated on 09/06/2012. It appears that the Visa was cancelled as there were Olympic Games at U.K. but the rejection letter is not produced on record. Similarly, there was problem for Schengen Visa also. Therefore, the tour was cancelled by opponent.
(10) On the basis of the above facts, it was vehemently submitted on behalf of the opponent that the opponents were no way concerned with the rejection of Visa. Similarly, it was not duty of opponent to get Visa for complainants. It was also contended that Visa can be rejected on various grounds. Therefore, the opponent was not liable to refund the booking amount. On this point, the learned advocate for the opponent has relied on the ratio laid down in the case of Harishchandra Babulal Daspute & Anr. Vs. M/s.Kesari Tours Pvt. Ltd., by the Hon'ble National Commission in Revision Petition No.4485/2010. In the said case the consumer had booked tour and paid some amount towards Visa charges but Visa was not granted. It was rejected on the ground that all papers were not submitted. In that case it was held that the tour agency is not responsible for the rejection of Visa. The Consulate to consider the application for Visa. At the most the tour Agent may help the procedure in getting the documentation for Visa. It appears that in the present case the opponent had helped the complainants for filling the application for Visa but unfortunately, the Visa was rejected by UK Consulate. The said letter is not produced by the parties. But, fact remains on record that there were Olympic Games in U.K., so the 6 A/16/689 passenger visas were rejected by U.K. Consulate for which the opponent was not responsible. Therefore, the complainant is not entitled for refund of the amount paid for the tour. The opponent has given account of the amount which spent for the arrangements of the complainant, namely, booking of air-ticket and booking of hotels at different places and it has also produced on record documents showing that the opponent had made payment to Hotel Fusion on behalf of the complainants for which Euro 2320 were paid. So, it can be said that the opponent had made arrangement for air-ticket and stay for the complainants for which some amount was spent by them but due to cancellation they had to suffer for that. Hence, there is no question of refund of the amount to the complainants. Hence, in our opinion, the complainants are not entitled for refund of booking amount for the tour.
(11) The District Commission has considered the facts of the case but not appreciated in proper perspective and came to incorrect conclusion that the opponent was deficient in service and wrongly passed the order of refund of tour amount which is required to be set aside. Hence, we pass the following order:
ORDER
(i). Appeal is allowed.
(ii). Order passed by the District Commission is hereby set aside. In the result Consumer Complaint No.105 of 2014 is dismissed.
(iii). Amount, if any, deposited by the appellant at the time of filing the appeal be refunded to the appellant/opponent with accrued interest thereon.7
A/16/689
(iv). No order as to costs.
(v). Copies of the order be furnished to the parties.
[Justice S.P. Tavade] President [Poonam Maharshi] Member emp 8