State Consumer Disputes Redressal Commission
Thomas Cook (India) Limited And Another vs P.Y.Seshumaruti W/O Sivananda Gopal on 5 October, 2012
BEFORE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD F.A.No. 135 OF 2011 AGAINST C.C.NO.407 OF 2009 DISTRICT CONSUMER FORUM-I VISAKHAPATNAM Between 1. The Assistant Manager Thomas Cook (India) Limited 47-14-7,Eswar Plaza Dwarakanagar, Visakhapatnm-016 2. Thomas Cook (India) Limited Thomas Cook building Dr.Nalonoji road, Mumbai-001 Appellants/opposite parties A N D P.Y.Seshumaruti W/o Sivananda Gopal R/o F.No.407, Mayuri Beach Apartments Dutch House Layout, Visakhapatnam Respondent/complainant F.A.No. 139 OF 2011 AGAINST C.C.NO.409 OF 2009 Between 1. The Assistant Manager Thomas Cook (India) Limited 47-14-7,Eswar Plaza Dwarakanagar, Visakhapatnm-016 2. Thomas Cook (India) Limited Thomas Cook building Dr.Nalonoji road, Mumbai-001 Appellants/opposite parties A N D Murala Sivananda Gopal S/o late Srirangam R/o R/o F.No.407, Mayuri Beach Apartments Dutch House Layout, Visakhapatnam Respondent/complainant Counsel for the Appellant M/s P.Rajender Reddy Counsel for the Respondents M/s A.A.Swamy QUORUM: SRI R.LAKSHMINARSIMHA RAO, HONBLE MEMBER
& SRI THOTA ASHOK KUMAR, HONBLE MEMBER FRIDAY THE FIFTH DAY OF OCTOBER TWO THOUSAND TWELVE Oral Order ( As per R.Lakshminarsimha Rao, Member) ***
1. The opposite parties no.1 and 2 in both appeals are the appellants. The facts and circumstances of both cases are being similar, they have been taken up for discussion together. F.A.No.135 of 2011 is taken as lead case.
2. The respondent paid an amount of `24,990/-
to the second appellant on 14.2.2009 for her tour program to be conducted by the appellants who issued brochure and advertisement in newspapers. The respondent submitted papers for obtaining VISA along with booking certificate dated 30.3.2009. The American Consulate refused VISA to the respondent. The respondent claimed for return of the amount paid by her and got issued notice on 10.6.2009 for which there was a reply dated 16.7.2009.
3. The appellants resisted the claim contending that as per the terms and conditions governing the tour, the respondent is not entitled to the return of the amount paid by her. It is contended that non-issuance of VISA is not related to the appellants and the VISA was refused to be granted for the appellant had not maintained constant balance in her savings bank account.
4. The respondent has filed her affidavit and the documents Exs.A1 to A8. On behalf of the appellants, the Senior Manager-Leisure Travel (Outbound) filed his affidavit and the documents Exs.B1 to B10.
5. The District Forum has allowed the complaint on the premise that the amount of `24,990/- collected by the appellant include airfare, visa and medical insurance and that the tour was cancelled on account of rejection of visa and not on other personal grounds of the respondent and as such it cannot be treated as cancellation of tour by the respondent.
6. Feeling aggrieved by the order of the District forum the opposite parties have filed the appeal contending that there was no deficiency in service on their part and that applying visa is lookout of the respondent and that as per the terms of conditions of tour they are entitled to retain 100% of the amount collected from the respondent.
7. The point for consideration is whether the order of the District Forum suffers from misappreciation of fact or law?
8. It is beyond any dispute that the respondent paid an amount of `24,990/- on 14.2.2009 towards advance of the amount for the tour European Bargain . The appellants had issued receipt to the effect and it was agreed that the respondent had to pay balance amount of `2,59,500/- by 10.4.2009 for the tour commencing on the 22.4.2009. It was agreed that the appellants would process the papers for obtaining visa of the respondent and the respondent had submitted the papers to the appellants on 26.3.2009 along with the booking form. The visa was refused by the American Consulate.
9. According to the version of the respondent, the visa was rejected as the tour period was not inconsonance with the prescribed period for issuing of the visa whereas the appellants contend that visa was rejected for the reason that the respondent had not satisfied the consulate authorities as to consistent maintenance of balance in her account. The District Forum has observed that the appellants collected the amount towards advance from the respondents and it includes air fare, visa charges and medical insurance.
10. The appellants contend that granting or refusing of visa is within the discretion of the consulate concerned and as her visa was rejected by the consulate authorities, the respondent ought to have proceeded against the consulate authorities. It is contended that the appellants facilitate the foreign travel and ultimate decision to grant or refuse visa is vested with the consulate concerned and as such they cannot be found fault with for the respondent not obtaining visa.
The fact remains that visa of the respondent was rejected.
11. As the visa was rejected, the respondent has no option to proceed with her tour itinerary and she claimed back the amount paid towards advance for the tour. The appellants had refused to return the amount on the premise that as per the terms and conditions of the tour the respondent cannot claim back the amount as she had cancelled her tour owing to rejection of her visa application.
The relevant terms and conditions as regards to the cancellation due to visa rejection are extracted hereunder:
CANCELLATION DUE TO VISA REJECTION:
All the clients traveling on a Thomas Cook Holiday tour must be in possession of a valid visa. However kindly note that it is entirely at the discretion of the concerned Consulate/Authorities to grant/reject visa even after submitting all relevant documents and the company will not be held responsible for the same. The company will not be responsible for non-issuance of visa due to receipt of incomplete/delayed documents from the Clients. It is a possibility that the consulate may ask the passengers to appear for a personal interview. This is at the sole discretion of the Consulate/Authorities.
Passengers whose visas are not granted by the UK/Swiss/Schengen/USA Consulates must intimate us at-least 45 days in advance, at which time the company will deduct INR 2,000/- per towards Administrative Charges in addition to any additional visa expenses incurred and refund the balance amount.
However if such intimation is received within the said period of the operation of the tour, the cancellation charges will be applicable as per the cancellation rules mentioned hereunder.
The date requested by the client will be confirmed after the client obtains the visa and is subject to the availability of the tour of the point of time.
CANCELLATIONS All services such as Airline seats/Hotel accommodation/ground transportation for group tours are pre-blocked well in advance. We are liable to pay penalties to all our suppliers/vendors if these services are released within the below mentioned time frame.
If circumstances make you cancel the Tour, the cancellation must be intimated to us in writing. Such cancellation will attract the following cancellation Charges:
Cancellation Charges Per Person when a Cancellation is made Charges:35
days or more prior to the departure of the Tour INR 25,000/-
34-15 days prior to the departure of the Tour INR 40,000/-
14-8 days prior to the departure of the Tour INR 55,000/-
7 days or less prior to departure of the tour or A No Show on the tour 100% of the Tour Cost.
12. The District Forum has observed that cancellation of the tour by the respondent cannot be considered as cancellation from her part in the strict sense of the word cancellation whereas the appellants would submit that as per the terms and conditions of the tour itinerary they are entitled to retain the amount as the respondent had cancelled her tour and they had booked accommodation for the respondents at the hotels abroad and as such in terms of the agreement, the respondent has to pay an extra amount of `30,000/- to them.
13. It is true going by the terms and conditions of the tour program, the respondent in case of cancellation of her tour has to forego the amount of `50,000/-. It is also true that the respondent had not cancelled the tour program on any of the personal grounds except rejection of her visa which is beyond her control. It was not the respondent who opted for rejection of visa. It is also a fact to be considered that the amount paid by the respondent includes airfare, visa and medical insurance. The amount was not paid to the appellants exclusively for the airfare or visa or medical insurance. As the amount was paid for obtaining the facilities provided for a package tour which includes in its ambit on the facilities such as accommodation, transportation, sightseeing, lodging and boarding etc.
14. The District forum has deducted an amount of rs.5,000/- from the amount of `24,990/- paid by the respondent and directed the appellants to return the amount of `19,990/-. It is not disputed that basing on the booking made by the respondent the appellants had made arrangement for providing facilities during her package tour. It is to be noted that the appellants had not stated as to whether they had collected amount from any other person on the appellant having opted for cancellation of the tour. In case the appellants could prove that they had not got any other person for the tour in the place the appellant, they can seek for refund of the entire amount paid by the respondent. In the absence of the loss said to have been sustained by the appellants, they cannot claim for retaining the entire amount received from the respondent.
15. Taking into consideration of the circumstances, we are of the view that the amount of `19,990/- directed to be refunded by the District Forum is on higher side and liable to be reduced to `10,000/-.
In the result the appeal F.A.No.135 of 2011 is allowed by modifying the order of the District Forum and reducing the amount from Rs.19,990/- to `10,000/-. The rest of the order is confirmed.
F.A.No.139 of 2011 is allowed by modifying the order of the District Forum and reducing the amount from `19,990/- to `10,000/-. The rest of the order is confirmed. There shall be no order as to costs in the appeal. Time for compliance four weeks.
MEMBER MEMBER Dt.5.10.2012 KMK*