State Consumer Disputes Redressal Commission
Cox And Kings Ltd. vs Arnab Kumar Sarkar on 7 September, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/424/2016 (Arisen out of Order Dated 15/04/2016 in Case No. CC/455/2012 of District Kolkata-I(North)) 1. Cox and Kings Ltd. 6, Little Russel Street, Kol - 700 071, W.B. ...........Appellant(s) Versus 1. Arnab Kumar Sarkar 13/3, B.T. Road, Narendra Nagar, Kol, W.B. 2. Kajal Lata Sarkar W/o, Arnab Sarkar, 13/3, B.T. Road, Narendra Nagar, Kol, W.B. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Sudip Bose, Advocate For the Respondent: In-Person., Advocate Dated : 07 Sep 2017 Final Order / Judgement Sri Shyamal Gupta, Member
This Appeal is directed against the Order dated 15-04-2016 passed by the Ld. District Forum, Kolkata - I (North) in C.C. No. 455/2012.
It is the case of the Complainants that for the purpose of embarking on an overseas tour to the USA, they roped in the services of the OP and as per its demand, paid all the due charges. Yet, they had a harrowing time while proceeding for said excursion and as such, for redressal of their grievance, they approached the Ld. District Forum.
On the other hand, besides disputing maintainability of the complaint case, it is claimed by the OP that at the time of filling up the form, the Complainant No. 1 was fully acquainted with the terms and conditions contained therein. Denying any arbitrariness in its dealings with the Complainants, the OP prayed for dismissal of the complaint.
Decision with reasons Challenging maintainability of the complaint case, it is argued by the Ld. Advocate of the Appellant that it was clearly mentioned in the booking conditions that, in case of any dispute, the same would be referred to the competent Court in Mumbai. It is further argued by him that the parties also agreed to resolve all disputes through the mechanism provided under the Arbitration & Conciliation Act, 1996. Therefore, on both counts, according to the Ld. Advocate, the instant complaint was not maintainable before the Ld. District Forum.
On a thoughtful consideration of the contention of the Ld. Advocate of the Appellant, we find that the averment of the Ld. Advocate itself is fraught with legal infirmity. Be it mentioned here that in terms of the provisions laid down under the Arbitration & Conciliation Act, the said Act specifically bars the jurisdiction of Civil Court to adjudicate such dispute that is the subject matter of adjudication under the Arbitration & Conciliation Act. In other words, due provisions for remedy before the Civil Court as well as under the Arbitration & Conciliation Act cannot coherently co-exist. Moreover, as per Section 28 of the Indian Contract Act, parties cannot by private agreement confer upon a court of law the jurisdiction which it does not possess, nor can they divest a court of law of jurisdiction which it possesses under the ordinary law. Such inherent defect of the agreement concerned, to our mind, makes it bad in law.
As for the jurisdiction of Consumer Forum to adjudicate a dispute, we feel that mere incorporation of arbitration clause in a contract does not necessarily overthrow the jurisdiction of Consumer Forum. In this regard, we may profitably place our reliance upon the decision dated 21-06-2017 of this Commission in MA/334/2016 (arose out of CC/324/2015.
In terms of the Consumer Protection Act, 1986, a complaint can be lodged within the territorial jurisdiction of a District Forum where cause of action wholly or partly arises. Therefore, to our mind, by choosing the Ld. District Forum for the purpose of redressal of their grievance, the Respondents committed no legal infirmity.
For all these reasons, the objection raised by the Appellant over maintainability of the complaint appears to be devoid of any merit.
In their petition of complaint, the Respondents raised host of allegations against the services of the Appellant which has, however, been disputed by the Appellant. On the basis of claims and counter-claims of the parties, the following facts emerge.
As regards the relief sought for by the Respondent being their status as a senior citizen, it is stated by the Appellant in its WV that the Respondents were offered to take refund of the discount amount of Rs. 2,000/- in this regard, but the latter refused to accept the same. Since the Appellant is/was willing to refund this amount, there seems no quarrel as to the eligibility of the Respondents to get back the said amount.
As for reimbursement of to & fro air fare amounting to Rs, 18,901/-, it is argued by the Appellant that as per booking terms and conditions, the Respondents were supposed to board at New Delhi for onward journey to the USA and that it had no contractual obligation to book domestic tickets for the Respondents for the Kolkata-New Delhi sector.
Contrary to the claim of the Appellant, we find that the Appellant accepted a sum of Rs. 10,000/- from the Respondents on 12-12-2011 for arranging air tickets for the Respondents from Kolkata to New Delhi; whereas, vide its e-mail dated 01-03-2012 the Appellant informed the Respondents that their request for changing their hub from Kolkata instead of New Delhi was possible subject to availability of seats in the airline concerned and flight connection availability and ultimately about one month before the date of scheduled journey, expressed its inability to make the desired arrangement, which compelled the Respondents to book tickets on their own burning a hole in their pocket. No plausible reason is assigned from the side of the Appellant as to why it did not act on the request of the Respondents immediately after receipt of requisite money from the Respondents for this purpose. Had the Appellant promptly swung into action, there is no reason why two air-tickets could not be arranged for the Respondents at an economical price. Since the Respondents were apprised of the inability of the Appellant to make necessary arrangements for booking air tickets from Kolkata just nearly a month ago, the Respondents were compelled to buy tickets at an exorbitant price. To our mind, therefore, none but the Appellant must own up due responsibility in this regard.
In this regard, it is claimed by the Appellant that as per direction of the Respondents, they adjusted the extra payment made by the Respondents, i.e., Rs. 10,000/- towards UDF charge. It seems, w.e.f. 15-05-2012, a departing international passenger, travelling over 5,000 kms, was required to pay Rs 1,068 as UDF and an arriving passenger Rs 881.10. For passengers who travelled between 2,000 and 5,000 kms, a departing traveler was required to pay Rs 845.50 and an arriving one Rs 699.17. The international travellers flying short distances below 2,000 kms, would have to pay Rs 534 for departing from New Delhi airport and Rs 436 for arrival. In the domestic sector, a departing passenger was required to pay Rs 462.80 for travel over 500 kms and an incoming passenger Rs 391.60. For travel up to 500 kms, a passenger would pay Rs 231.40 and Rs 195.80 for using the airport for departure or arrival. Thus, on what basis the Appellant sought to adjust Rs. 10,000/- as UDF charge is not clear to us. Clearly, there is gross arbitrariness in the demand of the Appellant in this regard.
As for health insurance premium, admittedly cost of overseas travel insurance was valid for the duration of the tour with coverage up to the age of 70 years. Since the Respondent No. 1 was well above this cut off age and thus ineligible for the insurance coverage arranged by the Appellant, definitely the premium amount of Rs. 1,000/- ought to be deducted from the package amount which was done by the Appellant. We, therefore, feel that the Respondent No. 1 deserves refund of Rs. 1,000/- from the Appellant on this account.
Regarding claim of the Respondents for the refund of Rs. 2,000/- on account of 'secure your booking amount', it seems, the Appellant has no qualms refunding this amount. Similarly, in respect of the claim of the Respondents' for refund of excess US$ paid by them, it seems, the Appellant has got no reservation to accede to this claim of the Respondents though according to its estimation, an amount of Rs. 3,770/-needs to be adjusted towards short payment made by the Respondents. However, in absence of due clarity as to how such short payment occur, the claim of the Appellant cannot be entertained.
On due consideration of the aforesaid facts, it appears to us that ends of justice would be met if the Appellant is directed to pay Rs. 20,000/- to the Respondents towards extra payment made by the Respondents.
It is alleged by the Respondents that in absence of any escort/guide/assistant from the side of the Appellant, either at the Kolkata airport or at the New Delhi airport, they were literally left to fend for themselves to board the international flight and being elderly couple, they had a tough time carrying their luggage from the domestic airport to the international airport in New Delhi. Moreover, lest they miss the international flight in the early morning next day, they passed sleepless night in the lounge of international airport at the New Delhi airport. Even at the Kennedy International airport, the Tour Manager received them after one hour on their arrival overthere. Similarly, she allegedly abandoned the Respondents at the airport long before scheduled departure.
In this regard, it is claimed by the Appellant that the tour itinerary given to the Respondents did not mention that escort/representative would be available from the departure hub. It is further stated that escort always greets the passenger at the destination airport (abroad), at the meeting point after immigration and customers and transfer the passenger comfortably to the hotels. Despite appreciating the contention of the Appellant, we cannot endorse the fact that the Tour Manager received the Respondents after an hour since their arrival at the Kennedy International airport and at the time of return journey, abandoned them long before the scheduled time of departure.
It is alleged by the Respondents that the Tour Manager mostly arranged their dinner at Punjabi restaurants, which, according to the Respondents, were below par standard. Further, from the photocopies of feedback forms submitted by the Appellants, it appears that some of the tourists did vent their frustration with the hotels being arranged in the city of Newark, Las Vegas and Los Angels. Although the sample size is too small to form any (out of 49 tourists, feedback form in respect of only five persons provided) firm opinion, the allegations of the Respondents cannot be brushed aside as mala fide/ baseless/vexatious. On a thoughtful consideration of the grievance of the Respondents vis-à-vis clarification given by the Appellant, we feel that ends of justice would be met if the Respondents are awarded a sum of Rs. 30,000/- as compensation.
Accordingly, the Appeal stands allowed in part.
Hence, O R D E R E D That A/424/2016 be and the same is allowed on contest in part. The impugned order is modified as under.
Appellant shall refund Rs. 20,000/-, within 45 days hence, being the extra payment made by the Respondents together with compensation and litigation cost for a sum of Rs. 30,000/- and Rs. 10,000/-, respectively, i.d., simple interest @ 9% shall accrue over the amount of Rs. 20,000/- from the date of filing of the complaint till full and final payment is made. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER