State Consumer Disputes Redressal Commission
Chander Prakash Tewari vs Thomas Cook India on 19 August, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 325 of 2013 Date of Institution : 29.07.2013 Date of Decision : 19.08.2013 1. Major General (Retd.) Chander Prakash Tewari son of Late Sh. O. P. Tewari R/o Flat No.501/B, GHS Society 60, Sector 20, Panchkula. 2. Mrs. Sukhwarsha Tewari w/o Major General (Retd.) Chander Prakash Tewari R/o Flat No.501/B, GHS Society 60, Sector 20, Panchkula. Appellants/Complainants. Versus 1. Thomas Cook ( India) Ltd., Thomas Cook Building, Dr. D. Naoroji Road, Mumbai 400001. 2. Thomas Cook (India) Ltd., SCO No.28-29-30, Sector 9-D, Madhya Marg, Chandigarh. ....Respondents/Opposite Parties. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by: Sh. Sandeep Bhardwaj, Advocate for the appellants.
PER DEV RAJ, MEMBER This appeal is directed against the order dated 05.06.2013, passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, the District Forum allowed the complaint filed by the complainants (now appellants) and directed the Opposite Parties, as under:-
13. This complaint is allowed accordingly. The Opposite Parties are directed to refund Rs.42,000/- each to the Complainants.
As the initial amount has been paid by the Complainant No.1, option of making complete payment of Rs.84,000/- to Complainant No.1; due to Complainant No.1 & 2 together, is also given to the Opposite Parties. Opposite Parties will also pay Rs.10,000/- towards costs of litigation.
14. This order be complied with by the opposite parties within 45 days from the date of receipt of its certified copy, failing which the decreed amount will carry interest @9% p.a. from the date of receipt till actual payment, besides the costs of litigation.
2. The facts, in brief, are that complainant No.1 had booked an American Grandeur Tour with Alaskan Cruise with the Opposite Parties, on 01.03.2012, for himself and his wife by paying a sum of Rs.1,00,000/- (Rs.50,000/- each) as per the terms and conditions of the Opposite Parties (Annexure C-1). It was stated that it was necessary to obtain the Visa for America, as well as Canada, in order to complete the tour. It was further stated that the Opposite Parties had assured that they would obtain the Visa for both the Countries, for the complainants, for which they were taking fee, as it was a part of the package. It was further stated that the detailed terms and conditions were not supplied to the complainants. It was further stated that on 24.04.2012, Visa for America was granted to the complainants due to their own personal efforts, and the process for getting Visa for Canada was also initiated by the Opposite Parties, but the same was eventually not provided, despite providing all the information and documents, as per the advice and guidance of the Opposite Parties. It was further stated that the application forms for the said Visas had been handed over to one Sh. Jagdeep Singh, sitting in the office of the Opposite Party No.2, on 09.05.2012, who after one week asked the complainants to submit income tax returns and bank statements. It was further stated that the documents were supplied, the very next day, and the complainants were told that the grant of Visa would take about 10 working days. It was further stated that complainant No.1 rang up one Mr. Gaurav Luthra, working with the Opposite Parties, many times, about the status of his bookings and payments due from him, but he was unable to determine the amount to be paid and promised to inform shortly, but no information was received from said Gaurav Luthra at any point of time. It was further stated that eventually, the Canadian Visa of the complainants was rejected on the ground that the financial status was unsound for making the tour. It was further stated that Opposite Party No.2 also issued a receipt dated 8.6.2012, whereupon, complainant No.1, found that the amount shown in invoice (Annexure C-2) was totally different from the Booking Form (Invoice Annexure C-1).
3. It was further stated that it was the duty of the Opposite Parties to guide and advise the complainants to supply relevant documents of fixed assets and other source of income, which was later on informed by them (Opposite Parties) for getting the Visa. It was further stated that on 11.6.2012, complainant No.1 visited the Army Officers in the Army Headquarters, Military Intelligence Branch (Foreign Division) in order to get Visa, at his own level. It was further stated that complainant No.1 sent his complete case brief, on-line alongwith copies of his assets, and other financial papers, on the very same day, through Army channels. It was further stated that complainant No.1 was informed, in the evening, by the Army Headquarters, that the case had already been rejected and closed. It was further stated that on 12.06.2012, when complainant No.1 visited the Canadian Embassy, it was informed that no interview was possible, as there was no emergency. It was further stated that complainant No.1 even met the Vice President of the Opposite Parties namely Mr. Amal Rakeshi, on the same day, and discussed all options, wherein, it was decided that the tour should be postponed and the money spent so far, should be carried forward, for fresh tour. It was further stated that complainant No.1 was informed that he should take the American Tour only, to which he agreed reluctantly. It was further stated that he even received a phone call, from Mr. Gaurav Luthra, who informed him to bear the expenses of Alaskan Cruise and air tickets to Canada, and only then he would be allowed to proceed with the American Tour. It was further stated that on enquiring about the expenses, the Opposite Parties did not disclose any amount. It was further stated that the Opposite Parties obtained signatures of complainant No.1 on blank forms, without disclosing any terms & conditions (Annexure C-3 & C-4). It was further stated that no information pertaining to the tour package, was provided to complainants, by them, in detail, and, thus, they were not liable to pay any charges, as they could not proceed with the tour. It was further stated that a legal notice was served upon on the Opposite Parties, for refund of the amount (Annexure C-7), but to no avail. It was further stated that the act of the Opposite Parties, in not providing the complainants proper guidance and not refunding the amount paid by them amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), seeking directions to the Opposite Parties, to pay Rs.1,00,000/- alongwith 18% interest per annum from the date of deposit till payment, Rs.1,00,000/- as compensation for mental agony and harassment; and Rs.25,000/- as cost of litigation, was filed.
4. The Opposite Parties, in their written version, took up some preliminary objections, to the effect, that a false and vexatious complaint was filed by the complainants with a malafide intent to avoid the just and legal cancellation charges for the tour booked by them. It was further pleaded that, in fact, the Opposite Parties had to suffer huge losses since the hotels, sightseeing and other services, associated with the tour were pre-booked and the Opposite Parties were always liable to pay its suppliers, besides the fact, that several of the services like cruise tickets, internal air tickets, visa costs etc. were completely non-refundable.
5. On merits, it was stated that the complainants approached Opposite Party No.2 on 01.03.2012 and expressed their intent to book and take the American Grandeur tour departing from Delhi on 15.06.2012, as per their choice and budget. It was further stated that in addition to the American Grandeur tour, they also opted for going on an additional Alaskan Cruise and at the same time expressed their desire, to take a post tour deviation from the pre-arranged departure schedule of the tour and requested for booking of additional air tickets from Seattle to Vancouver on the 07.07.2012 and further for return air tickets from Toronto to Montreal on 25.07.2012 and return to New Delhi via Amsterdam on 26.07.2012. It was denied that any of employees of the Opposite Parties, made any false assurances, to book the tour. It was further stated that the Executive of the Opposite Parties explained the salient features of the tour and the terms and conditions governing the same, especially the risk regarding cancellation charges in case of cancellation of tour, due to visa rejection, in great detail, and transparent manner. It was further stated that all clauses from the booking form, and the brochure were read out and explained to the complainants, and it was only after fully understanding their import and acceptance, that Complainant No.1 signed the booking form, on his, and his wifes behalf.
6. It was further stated that for taking the American Grandeur tour, the passengers were required to be in possession of a valid American visa, and since the complainants had planned to visit their friends/relatives in Canada after the tour, they were required to have a Canadian visa too. It was further stated that the complainants were not given any assurance, regarding the Visa and they were clearly informed that the services being provided included providing assistance and guidance regarding application for Visa and the requisite Visa fee. It was further stated that the responsibility of providing necessary documents, and eventually getting the valid Visa was of the complainants and the Opposite Parties could not be made liable for the same. It was further stated that the complainants were provided all necessary assistance and guidance for applying for the Visa. It was further stated that the standard document checklist was provided to the complainants, at the very outset, to establish their financial status, to prove strong ties to the Country of origin. It was further stated that despite repeated reminders, the same were not provided and only income tax return and bank statement were given by the complainants. It was further stated that the Opposite Parties had no option, but to apply for the US Visa with the said documents. It was further stated that since the Visa for America was granted on the basis of these documents only, the complainants became overconfident and were sure they would be granted the Canadian Visa.
7. It was further stated that the complainants were kept informed about the visa process and other services at all stages. It was further stated that the receipt regarding payment of Rs.1,00,000/- by the complainants, was duly handed over to them. It was further stated that the complainants demanded another invoice from the Opposite Parties, when they were informed about the rejection of their Canadian Visa. It was further stated that the invoice reflected some amended charges, which were duly intimated and communicated to the complainants, like increase in fuel surcharges and cost of post tour deviation. It was further stated that several costs and charges especially for the extra air tickets booked by the complainants, were not reflected, in the said invoice. It was further stated that the documents, sought from the complainants, including fixed deposits, property papers etc. were not provided by them. It was further stated that after the rejection of the Canadian visa, the complainants were given several options, including the option of availing of the American Grandeur tour as per plan, since they were already in possession of the American visa required for the actual tour. It was further stated that it was explained to the complainants, that cancellation charges, as per the policy, including the charges incurred on nonrefundable services like additional air tickets and cruise were to be borne by them. It was further stated that Complainant No.1 decided to pursue the Canadian visa at his own level, for which the Opposite Parties could not be blamed. It was further stated that the Opposite Parties performed their duties diligently, and in the best possible manner, and gave all necessary assistance and guidance to the Complainants. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong.
8. The complainants filed replication wherein, they reiterated all the averments contained in the complaint, and repudiated those, contained in the written version, filed by the Opposite Parties.
9. The Parties led evidence, in support of their case.
10. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above, in the opening para of the instant order.
11. Feeling aggrieved, the instant appeal, has been filed by the appellants/complainants.
12. We have heard the Counsel for the appellants/complainants, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
13. The Counsel for the appellants/complainants submitted that the District Forum over-looked, misinterpreted, misconstrued and misunderstood the evidence available on record. It was further submitted that at the time of final arguments, the respondents placed, on record, the original brochure without any application for placing the same on record and the District Forum took the said brochure, on record, clearly proving that original documents were in possession of the appellants whereas the same were never handed over by the respondents. It was further submitted that an amount of Rs.8000/- was deducted, on the ground, that the Opposite Parties made efforts to prepare file for the visa application and also paid visa fee. It was submitted that no documentary evidence was placed, on record, for paying fees towards visa by the respondents and, as such, the deduction was totally against law. It was further submitted that the respondents themselves were not aware about the requirement to be completed in order to obtain VISA for Canada and even the rejection of VISA was never communicated to the appellants. The appellants did not cancel the tour and the tour could not be completed due to deficiency in service on the part of the respondents. It was further submitted that the District Forum totally ignored that it was necessary to obtain VISA for America as well as Canada to complete the tour otherwise the tour was of no use to the appellants. It was further submitted that the agents of the respondents were not aware about the requirement to be got completed for obtaining VISA for Canada and there was no requirement to demand the documents, in case, the same were not required for the package. It was further submitted that the respondents could not retain the amount received from the complainants, under the garb of changes, if any, without providing any services.
It was further submitted that the District Forum found the Opposite Parties deficient, in rendering services, to the complainants, but while passing the impugned order, did not award compensation and costs.
It was prayed that appeal be allowed and the impugned order, passed by the District Forum, be modified and the respondents be directed to refund the deposited amount alongwith interest, costs and compensation in the interest of justice.
14. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants/complainants and the evidence, on record, we are of the considered opinion that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter.
15. The question arises, as to whether (i) the respondents/Opposite Parties were right in deducting an amount of Rs.16,000/- @ Rs.8,000/- per person (ii) whether there was deficiency in rendering service, on the part of respondents/Opposite Parties, making the appellants/ complainants, entitled to compensation and costs.
16. Admittedly, the appellants/complainants paid Rs.1,00,000/- (Rs.50,000/- each). Annexure R-1 (front page) contained acceptance of booking conditions by the appellants, in the following manner:
On behalf of the above person(s) I have read and accepted the booking conditions mentioned overleaf and as in brochure.
Signature: Sd/-
17. Appellant No.1 appended his signatures on Annexure R-1 below the above stipulation, and, thus, the appellants/complainants were bound by the terms and conditions overleaf. In the rejoinder, in Para 4, the appellants/complainants mentioned It is admitted that complainant No.2 has not signed any terms and conditions. The logical inference is that the terms and conditions were signed by appellant/complainant No.1. The District Forum, in Para 10, has held that Annexure C-1/Annexure R-1 was signed by the Travel Agent, as well as by complainant No.1. The appellants have not controverted this finding of the District Forum in the appeal. Once the terms and conditions were signed by one of the complainants, in view of extracted part of Annexure C-1/R-1, reproduced above, the same were binding upon the appellants/complainants. In fact, the contents of Annexure C-1 (which the appellants/complainants did not produce, in complete form, to escape their liability, from accepting the terms and conditions), and front page of Annexure R-1, are the same. Annexure R-1 was produced by the respondents/Opposite Parties in complete form, alongwith the terms and conditions mentioned overleaf. The appellants/ complainants, therefore, cannot wriggle out of the terms and conditions as mentioned in Annexure R-1 overleaf.
18. CANCELLATION DUE TO VISA REJECTION clause is extracted below:-
Cancellation due to visa rejection: - All the clients travelling 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 is not at all liable for such cases or has any influence on the Consulate/embassys decision. The role of the company is only to provide necessary guidance to the client for the purpose of applying for VISA. 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. If the required documents are not submitted by the client, the issuance of visa will further be delayed/ rejected, and the client will not hold Thomas Cook liable for the same. Client should adhere to all the norms and conditions laid by the Consulate/ embassy.
Upon rejection of Visa, if the client wishes to reapply for the visa, he/she is liable to pay again the requisite fee to the Consulate and he/she will not claim from Thomas Cook.
19. The District Forum in Para 11 of its order, on the basis of the terms and conditions (Annexure R-1) held that the Visa application of the appellants/complainants was rejected not due to any fault of the Opposite Parties.
20. In fact, as per condition under the title CANCELLATIONS of the terms and conditions, the cancellation charges could be as under:
Cancellation charges with a Cancellation is made.
Per Person Charges.
35 days or more prior to the departure of the Tour.
INR 50,000/-
34-21 days prior to the departure of the Tour.
INR 70,000/-
20-11 days prior to the departure of the Tour.
INR 1,00,000/-
10 days or less prior to departure of the tour or a No Show on the tour.
100% of the Tour Cost
21. The Opposite Parties would not have made the payment, for the complainants, for the package, till the full payment had been received. In the instant case, the respondents/Opposite Parties did not place, on record, the tickets bought, on behalf of the complainants, for the air travel to substantiate their stand. It was, under these circumstances, that the Opposite Parties were held liable to refund the amount paid by the complainants after ordering necessary deductions. It is in evidence that the respondents/Opposite Parties, made efforts to prepare the file for obtaining Visa. The respondents/ Opposite Parties, time and again, requested the appellants/complainants to complete the documents. Thus, a sum of Rs.8,000/- for each person was ordered to be deducted, from Rs.1,00,000/- (fee of Rs.50,000/- for each person paid). It cannot be said that the respondents/Opposite Parties did not render any service. The visa could be issued on submission of the requisite documents, complete in all respects, and on fulfillment of all the conditions which was the responsibility of the appellants/complainants. The documents except income tax return and bank statement, despite reminders by the respondents were not provided by the complainants. It is, therefore, not logical and reasonable to expect that without completing the documents and formalities, by the appellants/ complainants, the respondents/Opposite Parties could be held to be deficient in rendering service. It also came in evidence before the District Forum that the appellant/complainant No.1, despite being a highly ranked Officer of the Indian Army, made personal efforts, through his official contacts, to get the Canadian Visa, but the same was denied by the Canadian High Commission. The complainants were, thus, not entitled to any compensation. The District Forum, besides ordering refund of Rs.84,000/- also allowed Rs.10,000/-
towards litigation cost. The findings of the District Forum, in this regard, being correct, are affirmed.
22. No other point, was urged, by the Counsel for the appellants/complainants.
23. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
24. For the reasons recorded above, the appeal filed by the appellants/complainants, is dismissed, at the preliminary stage, with no orders as to costs. The impugned order, passed by the District Forum, is upheld.
25. Certified Copies of this order be sent to the parties, free of charge.
26. The file be consigned to Record Room, after completion.
Pronounced.
19th August, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Ad STATE COMMISSION (First Appeal No.325 of 2013) Argued by: Sh. Sandeep Bhardwaj, Advocate for the appellants.
Dated the 19th day of August , 2013 ORDER Vide our detailed order of the even date, recorded separately, this appeal filed by the appellants/complainants has been dismissed, at the preliminary stage, with no order as to costs.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad