State Consumer Disputes Redressal Commission
M/S Cox And Kings India Pvt. Ltd., vs Tara Balasubramanyam & Others on 6 September, 2011
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. DATED THIS THE 06th SEPTEMBER 2011 PRESENT HONBLE JUSTICE MR.K. RAMANNA : PRESIDENT SRI. A.M. BENNUR : MEMBER SMT. RAMA ANANTH : MEMBER Appeal No.1092/2010, 1584/2010 & 2244/2010 Appeal No.1092/2010 The Oriental Insurnance Co. Ltd Rep. by its Authorised Signatory, No.44/45, Leo Shopping complex, Residency Road, Cross, Bangalore-25. (By Shri/Smt Sri Manoj Kumar M.R Appeal No.1584/2010 1. Tara Balasubramanyam W/o.late.T.V.Balasubramanyam, Aged about 74 years. 2. Kailash Chandra Sudarshan, S/o.late.T.V.Balasubramanyam, Aged about 41 years. 3. Shalini Sudarshan W/o.Kailash Chandra Sudarshan, Aged about 37 years. 4. Master.Aditya Sudarshan S/o.Kailash Chandra Sudarshan, aged about 2 years, Rep. by his father natural guardian Sri.Kailash Chandra Sudarshan All are residing at : No.36/20-1, Gangothri, Papu Cottage, # 36, Kanakapura Road, Basvanagudi, Bangalore 560 004. (By Shri/Smt M.M.Swamy ) Appeal No.2244/2010 M/s Cox and Kings India Pvt. Ltd., Having its registered office at: Turner Morrison Building, No.16, Bank Street, Fort Mumbai 400 023. Having its Branch Office at:No.22, BMH Complex, K.H.Road, [Double road], Bangalfore 560 027. (By Shri/Smt M/s Lexplexus ) Appeal No.1092/2010 1. Smt. Tara Balasubramanyam W/o.Late. T.V.Balasubramanyam, Aged about 75 years, 2. Sri Kailash Chandra Sudarshan, S/o. Late. T.V.Balasubramanyam, Aged aout 42 years, 3. Smt. Shalini Sudarshan, W/o. Kailash Chandra Sudarshan, Aged about 38 years, 4. Master Aditya Sudarshan S/o. Kailash Chandra Sudarshan, Aged about 03 years, Represented by his father natural guardian, Sri Kailash chandra Sudarshan, All are R/at #36/20-1, Gangothri, Papu Cottage, No.36, Kanakaura Road, Basavangudi, Bangalore-560 004. 5. M/s. Cox and Kings (India Limited) #22, BMH Complex, K.H.Road, Bangalore-560 027. Represented by its Manager. (By Shri/Smt ) Appeal No.1584/2010 1. The Oriental Insurance Co. Ltd., Division IX, Homi Modi Street Fort, Mumbai 400 023. Rep. by its Branch Manager. 2. M/s Cox and Kings (India Limited) No.22, BMH Complex, K.H.Road, Bangalore 560 027. Rep. by its Manager. (By Shri/Smt ) Appeal No.2244/2010 1. Tara Balasubramanyam W/o.late.Balasubramanyam, aged 74 years. 2. Kailash Chandra sudharshan S/o.late.Balasubramanyam, Aged 41 years. 3. Shalini Sudharshan W/o.Kailash Chandra sudharshan, Aged 37 years. 4. Master Aditya Sudharshan S/o.Kailash Chandra Sudharshan, aged 3 years, Rep. by his natural guardian and father Kailash Chandra Sudharshan. Resp. 1 to 4 are all residing at No.36/20-1, Gangothri, papu Cottage, No.36, Kanakapura Road, Basavanagudi, Bangalore 04. 5. The Oriental Insurance Co. ltd. Division IX, Homi Modi Street, Fort, Mumbai 400 023. Rep. by its Branch Manager. (By Shri/Smt R-I to IV svd, R-V Manoj Kumar ) .Appellant Opposite Party before the DF .Appellant Opposite Party before the DF -Versus- .Respondent Complainant before the DF. .Respondent Complainant before the DF. .Respondent Complainant before the DF. O R D E R
SRI. A.M. BENNUR, MEMBER These are the three appeals filed under Section 15 of the C.P Act of 1986 by the respective OP No.1, 2 and complaint in Complaint Nos.1346/2009 on the file of III Addl., District Consumer Disputes Redressal Forum, Bangalore being aggrieved by order dated 02-02-2010.
The brief facts of the case are as under:
2. The complainant became member of package tour arranged by Op No.2 to go to Bangkok and some other countries, paid Rs.3,15,900/- to Op No.2. Op No.1 covered insurance policy of the trip with respect to the said tour on 17/07/2008, when they landed at Bangkok, complainant felt sick due to acute gastroenteritis. They requested the tour manager to provide the necessary medical assistance but it went in vain. Op had not arranged food supplement to the child it become week.
Complainant on their own got the doctor, on examination, the doctor advised them to go back to India. Hence, they wanted to cancel the tour. They requested the tour manager to arrange for return ticket and make payment of the hotel bill etc., but it went in futile. Hence, they suffered both mental agony and financial loss. They felt deficiency in service on the part of Op No.2. After returning to India, they made claim to Op No.1 but their claim was repudiated without due application of mind. Hence, complainant also felt deficiency in service against Op No.1 also.
Accordingly, filed the complaint.
3. On appearance, OPs filed the version denying all the allegations made by the complainant in toto. According to Op No.1 under clause-G of the insurance policy, if trip is cancelled due to death, serious injury or sudden sickness of the spouse of the insured or child residing with the insured in India their liability lies. But here in this case, complainants have failed to show that they come under the specific category narrated above. Clause-4G makes it clear no claim shall be paid for any liability arising directly or indirectly due to supply of goods or services.
Admittedly, Op No.1 has not provided any food supplement to the complainant; on this score also complainants are not entitled for the relief claimed. Op after due application of mind repudiated the claim. Hence, there is no deficiency in service.
4. Op No.2 filed the version mainly contending that the complaint is bad for non-joinder of necessary party. The tour broucher does not speak about providing baby food.
Generally Op No.2 does not provide supplement food on tour. If the complainants become sick due to their own carelessness and negligence, for that Op No.2 cannot be blamed. At the request of the complainants, Op No.2 extended the assistance of their local manager Smt.Leena. For the reasons knows to the complainant they could not continue the tour to Malaysia, they stayed back at Bangkok on their own. Hence, Op No.2 is not liable to pay hotel charges. So also the air ticket difference as claimed. When complainants cancelled their tour in the middle, as they have taken the insurance policy from Op No.1. They can redress their grievance against Op No.1. As far as Op No.2 is concerned complaint is devoid of merits. Among these grounds, Op No.2 also prayed for dismissal of the complaint.
5. Then the litigating parties lead their evidence and after hearing the arguments, the DF was pleased to allowed the complaint in part vide its order dated 02-02-2010. Being aggrieved by the same, Op No.1 and 2 have come up with these appeals No.1092/2010, 2244/2010 respectively. The complainant being not satisfied with the order sought for enhancement of compensation by filing the appeal No.1584/ 2010. In order to avoid repetition of facts and multiplicity of reasoning, in the interest of justice, all these three appeals are heard together and disposed off by this common order. The ground urged by the Op No.1 and 2 are as under.
6. That the DF failed to appreciate the facts and circumstances of the case in a proper perspective manner. The conclusion arrived at, inferences drawn, findings recorded, reasons assigned are opposed to law, facts and probabilities of the case.
Ops are able to show under what circumstances their liability accrues under clause-4G and clause-G. Though these facts are established the DF failed to take note of the same. Ops No.1 and 2 are able to establish that there is no deficiency in the service on their part. But still DF ignored to consider the same. Hence, if the said order is not set aside it is the Op No.1 and 2 who will be put to greater hardship and prejudice. Among these grounds, appellant prayed for allowing the appeals.
7. The complainant has urged in the appeal memo that though DF has held there is a deficiency in the service on the party of Op No.1 and 2 but the compensation is awarded is very meager not in consonance with mental agony and financial loss suffered by the complainant. If the said compensation is not enhanced as prayed, it is the complainant/appellant who will be put in greater hardship and prejudice. Among these grounds, complainant/ appellant prayed for allowing the appeal.
8. Heard the arguments.
9. In view of the above said facts, the points that arise for our consideration in these appeals are as under:
:-Points:-
1.
Whether the impugned order under appeal is unjust and improper?
2. If so, whether it calls for the interference from this commission?
3. To what order?
10. We have gone through the pleadings of the parties, both oral and documentary evidence, the impugned order under appeal, grounds urged in the appeal memo and the arguments advanced. In view of the reasons given by us in the foregoing paragraphs, our findings on Point No.1 and 2 are in negative and Point No.2, as per final order.
-:REASONS:-
11. At the out set, it is not in dispute that, these complainants went on the package tour arranged by Op No.2 to Thailand, Bangkok, Singapore, to which they paid Rs.3,15,900/- to Op No.2, Op No.1 covered the risk of the said tour undertaken by the complainants. It is the case of the complainants that on 17/07/2008, when they reached Bangkok, complainants felt ill due to acute gastroenteritis, they requested the tour manager who accompanied them to provide medical facility, which was not done. Op No.2, Manager also failed to provide proper food to see the child, due to which the child also become weak. Then complainants on their own made arrangements to get the doctor and they took the treatment by spending about Rs.9,920/-. Due to their ill heath they are unable to continue their tour to Malaysia. They stayed back at Bangkok. It is the responsibilities of Op No.2 to pay hotel charges but they failed to do so. It is further contended by the complainant that when they are forced to return back to India they paid extra charges to get air-tickets.
Actually, Op No.2 has to bear the said charges it is not done. Due to the hostile attitude of Op No.2, Complainants have suffered both mental agony and financial loss.
12. The evidence of the complainants appears to be very much natural, cogent and consistent.
There is nothing to discard their sworn testimony. It is a quality of evidence, that is more important than that of quantity. As against this unimpeachable evidence of the complainant, the defense set out by the OP appears to be defense for defense sake just to shirk their responsibility and obligation. Ops No.2 has contended that it has deputed the local tour manager Smt. Leena to assist the complainant but where as the complainant in toto denied the said fact.
Under such circumstances it would have been more fair on the part of Op No.2 to examine the said local manager to substantiate their defense. It is not done. Hence, the adverse inference has to be drawn.
13. Op No.2 has further contended that they are not liable to provide food supplement for the child. When the complainant and child become upset due to health problem on humiliation ground, Op No.2 would have arranged some special food, it is not done.
Complainants are in foreign countries, they may not be knowing where the food of their choice is available at what cost and where is the medical shop to take treatment. Under such circumstances it is an obligation on the part of Op No.2 to take care of their tourists, in all respect but it failed. Here, we find deficiency in service.
14. Op No.1 has strongly contended that the claim made by the complainant does not come in the purview of the trip cancellation, we do not agree with the same. There is no hard and fast rule that the trip could be cancelled due to death, serious injury or sudden sickness of the spouse or child residing with you in India. The clause is misinterpreted by Op No.1. If the interpretation as given by Op No.1 is accepted it will defeat the purpose for which the insurance policy was issued. In our view, the children residing with the insurer in India before trip are included in this clause because the said child, complainant No.4 is all along with the complainant No. 1 to 3. There is no need for the actual stay in India. On this ground also the repudiation made by Op No.1 appears to be with out due application of mind.
15. The other contention of Op No.1 that they should take care of themselves properly has no basis. No tourists invites ill health, such kind of defense loudly speak about shirking of responsibilities and obligation.
16. The DF has thoroughly assessed each and every aspect of the matter made a thread bare discussion and rightly come to the conclusion that there is deficiency in the service on the part of Op No.1 and
2. That conclusion appears to be just and proper judicious. The compensation awarded is appropriate in consonance with the mental agony and financial loss suffered by the complainant. It is moderate no ex-orbitant.
17. Though Op No.2 is aware of the said order took its own sweet time of 88 days in preferring this appeal. There is no satisfactory explanation with regard to the said delay. Of course, complainant has sought for in enhancement of the compensation, we do not find any substance to enhance compensation awarded by the DF. As already discussed by us in the above said paras all these 3 appellants have failed to show before this Commission that the impugned order is erroneous, unjust and it suffers from legal infirmity, unsustainable in law. There is no proof that the said order suffers from any error apparent on the face of record requiring our interference. We dont find any illegality and irregularity in the impugned order. Appeals appear to be devoid of merit. Accordingly, we answer Point No.1 & 2 and proceed to pass the following:
-:ORDER:-
Appeal No. 1092/2010, Appeal 1584/2010 and Appeal No.2244/2010 and 2244/2010 are hereby dismissed.
The deposit if any made by the appellant Appeal No.1092/2010 and in before this Commission be transmitted to the DF concerned, for needful.
Keep the original order in Appeal No.1092/2010 and a copy be placed in Appeal No.1584/2010 and 2244/2010.
PRESIDENT MEMBER MEMBER CSS