State Consumer Disputes Redressal Commission
Mr. Vicky Navnit Sadh vs Kuoni Traveks India Pvt Ltd (Sotc) on 12 September, 2018
CC/14/282 1/12
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Complaint Case No. CC/14/282
1. Mr.Vicky Navnit Sadh,
2. Mr.Navnit Kumar Sadh,
3. Reena Rani Sadh,
4. Pranavi Sadh, through father and natural
guardian Mr.Navnit Kumar Sadh,
5. Sharavan Kumar Sadh,
6. Sheela Sadh,
All residing at 21/42, Sagar Apartment,
Lokhandwala, Link Road, Jogeshwari (W),
Mumbai 400 102. ...........Complainant(s)
Versus
1. KUONI Travels India Pvt. Ltd. (SOTC)
Through its Director,
2. Mr.Rajiv Wagle, Managing Director,
3. Mr.Paul John, Chief Finance Officer and
Member of Executive Board,
4. Mr.Stefan Leser, Executive and Vice President of
South Region,
5. Mr.Rolf Schafreth, C.E.O. and Destination
Manager,
6. Mr.Peter Francies Rothwall, Director
And CEO of KUONI Group,
Registered Office at 8th Floor, Urmi Estate,
95, Ganpatrao Kadam Marg,
Lower Parel (West), Mumbai 400 013. .........Opponent(s)
BEFORE:
Mr.P.B. Joshi, Presiding Judicial Member
Mr. A.K. Zade, Member
For the Advocate Mr.Digambar Thakare
Complainant:
For the
Advocate Mr.Anand Patwardhan.
Opponent:
ORDER
Per Hon'ble Mr.A.K. Zade - Member:
CC/14/282 2/12
(1) Complainants have booked a tour for Europe and Scotland from opponents and paid total amount of Rs.14,29,888/- to opponents by cheques. Opponent no.1 is a Private Limited Company and opponent nos.2 to 6 are office bearers of opponent no1. Complainants are members of one family out of which complainant no.4 was minor and therefore, complainant no.2 being father and natural guardian of complainant no.4 filed complaint on behalf of complainant no.4. Complainants have submitted all the documents along with passports to opponents for obtaining visa for complainants. Complainants submitted the passports and other documents in the month of March, 2013 as the said tour was scheduled on 18/05/2013. As per complainants, the terms and conditions of opponents for providing the said tour facility to complainants included the condition that "however due to rejection of visa or non-processing of visa application due to any circumstance of the tour participant is unable to travel on the tour originally booked, he/she shall have the option to postpone the tour to another available date or change to any other tour by paying transport charges". As per complainants they were regularly in touch of the opponents for getting visa and getting their passports back from the opponents. However, they did not receive the same till the date of departure and they were also not communicated the decision regarding their visa approval. The said visa was rejected. But the same was not communicated by opponents to complainants till the date and time of departure and instead they were told that they will receive the status of "Schengen Visa" only after 08.00 p.m. The said visa was rejected on the departure date although the complainants were ready for departure to Europe and Scotland along with all their packing and baggage. As per complainants visa CC/14/282 3/12 rejection letter dated 29/05/2013 mentioned that, "opponents failed to submit required documents i.e. hotel reservation, multiple-entry visa, not provide detailed tourist program justifying the stay, for the schedule of tour operator or the whole family, not provided verifiable reference in Belgium outside hotel reservation, with the consulate, i.e. the proper authority for issuing visa", although opponents had all these documents with them. Thus, the complainant came to know late night on the date of departure that the visa was rejected by Consulate for the above reason. It is the contention of complainants that although the complainants had submitted their passports prior to 40 days and which were with the opponents since 40 days along with visa application, there was no reason for opponents for not submitting the same. Complainants, therefore, submitted that the said tour was cancelled only because of failure to submit documents with the Consulate in time by opponents. As per the complainants, opponents were duty bound as per the contract to get visa for the complainants and as they failed, the complainants demanded refund of their entire amount from opponents. The opponents refused to refund the same and stated that 100% cancellation charges were levied and there was nothing to refund. Complainants thereafter sent notice to opponents in reply to which opponents sent a cheque of Rs.5,97,301/- to complainants as full and final settlement, along with letter to that effect. Complainants replied that they were not accepting the said amount as full and final settlement and they accepted it only under protest as they were entitled for full refund without any deduction. It was also mentioned by complainants in the said letter that they proposed to go on family vacation next year in 2014 as per the terms of the contract. However, as there was no reply from opponents and also no refund of entire amount, complainants filed consumer complaint CC/14/282 4/12 No.532 of 2013 before this Commission but the same was subsequently withdrawn with liberty to file fresh one because of certain defects in the draft of the complaint and thereafter, the complainants filed the instant consumer complaint.
(2) Complainants also submitted that in the following year i.e. in April, 2014 the complainants through another tour operator had a trip to U.K. and Schengen countries and got visa on the similar tour with the same documents and passports. This shows that there was no discrepancy in the documents of complainants but it was negligence and delay on the part of the opponents because of which said visa was rejected in the instant case. Complainants, therefore, filed the instant complaint praying for refund of the entire amount paid by them for the said tour i.e. Rs.14,29,888/- along with interest @18% per annum from the date of respective payments till the date of realization and also for compensation of Rs.15,00,000/- towards physical, mental harassment and agony suffered. Complainants have also prayed for costs of Rs.1,00,000/- towards this complaint.
(3) Opponents submitted their common written version denying the allegations and averments of complainants regarding deficiency in service and negligence on their part. Opponents submitted that complainants themselves failed to comply their part of the contract and whatever happened due to mistakes and negligence of the complainants for which the opponents cannot be held responsible. Opponents have objected the instant consumer complaint on the ground that the instant matter is nothing but a recovery suit filed by complainants for recovery of the amount and as the contract was already over there was no service left to be given by opponents to complainants and therefore, no consumer complaint was left CC/14/282 5/12 between them and the instant complaint which is filed only for recovery of the amount needs to be dismissed.
(4) Another objection raised by opponents is that, since instant matter is only for recovery of the amount the consumer Forum has no jurisdiction to try the issue of recovery of amount and it can only be adjudicated by the Civil Court and therefore, the present complaint is not maintainable before this Commission and this Commission has no jurisdiction to try and adjudicate the issue involved in recovery matter. It is further submitted by opponents that the complainants' Schengen visa was rejected earlier and said fact was initially suppressed by complainants from opponents. As per opponents the delay caused by Belgium Authorities in processing the visa application prior to officially rejecting the same may be because of suppressing of the above said facts. Opponents also submitted that the complainants held back almost 82% amount till few days prior to departure whereas as per the terms and conditions the full payment should have been made at least 45 days prior to departure. Opponents denied that they have agreed to get visa for the complainants from concerned authority as grant of visa is a power of sovereign state and Embassy of a sovereign state has sole authority to decide whether to grant visa or not to any person. The opponents submitted that they had booked and confirmed all services for complainants such as air-tickets, hotels, ground services, local transportation abroad and seats booked for the complainants were not available for sale to other customers of opponents. Opponents further submitted that it is for the complainants to submit documents and proofs as required by the Embassy and as the same was not done, their visa applications were kept back for consideration and subsequently rejected by Embassy over which CC/14/282 6/12 opponents had no control or role. As per opponents, cancellation of tour booking by tour participant attract cancellation charges as specified by the company in their terms and conditions and instruction on 'how to book' which provide for "when cancellation is made five days prior to the departure of the tour or in case you are a "No Show" on the tour charges 100% of the tour costs" and "Transfer from one tour to another 45 days prior to the departure will be treated as cancellation on that tour and fresh booking on another". Opponents, therefore, submitted that, 'the complainants were free to book on another tour of their choice and utilize full and final refund given to them. However, as they demanded refund, amount of Rs.5,97,301/- was refunded to them as full and final settlement which was accepted by complainants but not encashed without any demur or protest. Instead complainants approached this Hon'ble Commission which is only for seeking higher amounts from the opponents'. It is also submitted by opponents that the said visa application was rejected due to the following among other reasons by the said authority:
"You have not provided the planned that you have sufficient means of subsistence for the duration of the resident permit plans or means to return to the country of origin or residence, or for the transit to a third country which your admission is guaranteed or you are not in a position to acquire such means lawfully".
The opponents, therefore, submitted that they are not responsible for rejection of visa to the complainants and the rejection was an independent decision of the embassy and opponent has no role to play in the said decision. Opponents therefore denied that complainants' visa was refused due to deficiency in service on part CC/14/282 7/12 of opponents. As per opponents, the complainants were not entitled to get any refund and were liable for 100% cancellation charges but due to complainants' requests opponents went out of their way and agreed to refund the amount of Rs.5,97,301/- as full and final settlement as a special case, all the services were booked in advance and was paid for and there was no refund on last minute cancellation. Opponents therefore denied the reliefs prayed by the complainants and prayed for dismissal of the complaint with costs, being false and frivolous.
(5) Both parties have filed affidavits of evidence and written arguments.
Arguments on behalf of the parties were heard. The following points arise for our determination and our findings on them along with reasons for the same are given as under:
Sr.No. Points Finding
(i) Whether complainants are Yes.
consumers within the meaning of
Consumer Protection Act, 1986?
(ii) Whether the complainants prove that Yes.
there is deficiency in service on the
part of opponents?
(iii) Whether instant consumer complaint Yes.
lies within the jurisdiction of this
Commission?
(iv) Whether the complainants are As per final
entitled for reliefs as prayed? order.
(v) What order? As per final
order.
REASONS:
As to point no.(i) 'Consumers':
CC/14/282 8/12
(6) Complainants have paid booking amount of Rs.3,000/- to the opponents for the said travel for which opponents have issued receipt dated 03/02/2013. Complainants have paid the amount of Rs.14,29,888/- inclusive of the above booking amount of Rs.3,000/- till the period ending on 13/05/2013 by cheques as per the tour invoice form of opponents along with other charges. The amounts paid by complainants are not disputed by the opponents. Thus opponent had received payment towards the said tour from complainants in exchange of which the opponents had assured the said tour package and other services to complainants. We therefore hold that complainants have proved that they are consumers and the opponents are the service providers within the meaning of Consumer Protection Act, 1986.
As to point no.(ii) 'Deficiency:
(7) The opponents have received the amount of Rs.14,29,888/- from the complainants for the said tour package for complainants. The opponents could not procure visa for the complainants for U.K. and Schengen. Visa could not be obtained by opponents till the date of departure i.e. 18/05/2013. Even the mail from opponents dated 17/05/2013 mentions that the status of visa would be known after 08.00 p.m. Thus, it is not disputed that the decision of visa could not be received till departure i.e. 18/05/2013 and opponents were well aware about it. In such a situation the opponents should have advised the complainants in advance to go for some alternate tour or to choose some alternate way for complainants' tour instead of waiting for the same till last moment. Opponents kept the complainants waiting till the time of departure and only in late hours, the complainants came to know that the said Schengen visa CC/14/282 9/12 was rejected by the concerned authority. Thus, it is clear that there was 'no due care' and 'no proper action' taken by opponents in respect of visa of the complainants. Although it is agreed that grant of visa is the power of sovereign county, it was the opponents who have received money for arranging the same and failed to communicate the complainants about the progress in respect of the grant of said visa, because of which on the last moment the complainants were required to cancel their tour. This mismanagement, lack of communication, lack of follow-up with the concerned authorities and negligence on the part of the opponents show deficiency in service on their part. Even the action of opponents after receipt of legal notice from complainants of refunding part amount of Rs.5,97,301/- itself shows the acceptance of deficiency in service on the part of opponents. We, therefore, hold accordingly and answer this point in affirmative.
As to point no.(iii) 'Jurisdiction':
(8) Opponents have raised objection that in the instant case the complainants have only prayed for recovery of the amount and therefore, it is a matter of Civil Suit and therefore, this Consumer Commission has no jurisdiction to entertain the complaint.
However, as we have held that complainants are the Consumers and opponents are the service providers and as the opponents have failed to provide necessary service to complainants, they are guilty of deficiency in service as per discussion in reply to point no.(ii) above. As there is deficiency in service on the part of the opponents and as the complainants have already undergone the said tour with some other service providers, in our opinion, the complainants have no choice but to ask for refund of the amount from opponents and compensation in respect of deficiency in service for mental CC/14/282 10/12 harassment. As this Commission has jurisdiction to try the dispute between the consumer and service provider, we do not find any force in the above objection of the opponents. We, therefore, answer this point in affirmative.
As to point no.(iv) 'Entitlement of reliefs:
(9) During arguments, advocate for opponents invited our attention to the booking form filled-up by the complainant himself and on behalf of himself and his family members and signed by the complainants.
In the said form, it is mentioned in the beginning that "I am forwarding the sum of Rs.40,000/- per person as non-refundable interest free booking amount which shall stand forfeited in the event of cancellation of package tour of me/us or being unable to travel due to any reason whatsoever and shall not dispute the forfeiture". Advocate for opponents therefore argued that at the very time of booking, the complainants had accepted the above condition of opponents and had signed the booking form and as such cannot ask for refund of the same. We accept this contention on behalf of opponents. We therefore hold that complainants cannot claim the above said amount of Rs.40,000/-per person in respect of said tour.
(10) The opponents had offered refund of Rs.5,97,301/- after deducting the cancellation charges towards land Rs.82,620/- per person, towards Air of Rs.40,000/- per person and towards visa of Rs.11,500/- per person aggregating to Rs.1,34,120/- per person plus 3.09% G.S.T. There is mail from complainant dated 27/08/2013 on record filed by complainant in which the complainant has agreed the deduction of Rs.11,500/- per person towards visa charges and Rs.5,000/- per person towards incidental/administration charges. Thus, we find that the complainants overall have agreed to the CC/14/282 11/12 deduction of Rs.40,000/- plus Rs.11,500/- plus Rs.5,000/-, total Rs.56,500/- per person for six persons total amounting to Rs.3,39,000/-. Thus, after deducting total amount of Rs.3,39,000/- from the total amount of booking i.e. Rs.14,29,888/-, the balance comes to Rs.10,90,888/-. We, therefore, hold that the complainants are entitled for the refund of Rs.10,90,888/- less the amount of G.S.T. from it.
(11) As regards compensation for mental agony of Rs.15,00,000/-
claimed by the complainants we find the same to be very excessive and unjustified. In our opinion, it would be proper and reasonable to grant the amount of Rs.25,000/- per person towards compensation for mental agony to the complainants totalling to Rs.1,50,000/- for six persons. We also find that the costs of Rs.1,00,000/- claimed by the complainants is excessive. We quantify the same at Rs.25,000/- being reasonable and proper. Hence, we pass the following order:
ORDER
(i) Consumer complaint is partly allowed.
(ii) The opponents are hereby declared as guilty of deficiency in service.
(iii) The opponents are hereby directed to refund amount of Rs.10,90,888/- (Rupees Ten Lacs Ninety Thousand Eight Hundred Eighty Eight only) less G.S.T. to the complainants, less the amount already paid, if any.
(iv) The opponents are also directed to pay Rs.1,50,000/- (Rupees One Lac Fifty Thousand only) to complainants towards compensation for mental agony and Rs.25,000/- (Rupees Twenty Five Thousand only) towards costs of this litigation.CC/14/282 12/12
(v) The opponents are directed to make the above payments to the complainants within a period of sixty days from the date of receipt of this order, else the opponents will be liable to pay the same with interest @6% per annum from the date of expiry of said period of 60 days.
(vi) Copies of this order be given to the parties free of costs.
Pronounced on 12th September, 2018.
[P.B. Joshi] Presiding Judicial Member [A.K. Zade] Member ep