State Consumer Disputes Redressal Commission
The Manager,M/S. Sotc Travel Services ... vs Dr.Subba Chandra Balaji ... on 5 August, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
PRESENT: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER
F. A.No.44/2017
(Against the order made in C.C.No.103/2007 dated 13.01.2016 on the file of
the District Forum,Madurai.)
THURSDAY, THE 05th DAY OF AUGUST 2022
M/s.SOTC Travel Services Private Limited,
(Formerly known as Kuoni Travel
(India)Private Limited,
Having their registered office at
324, Dr.D.N.Road, Fort, Mumbai - 400 001,
Pre:DCW, Centre, Stanrose House, 1st Floor,
New Prabhadesi Road, Prabha devi,
Mumbai - 400 025.
And their corporate office at
8th Floor, Tower A, Urmi Estate,
95, Ganpatrao Kadam Marg,
Lower Parel (W),
Mumbai - 400 013,
Represented through its Manager Appellant/2nd Opposite Party
-Vs-
1. Dr.Subba Chandra Balaji Bhaskaran,
S/o Baskaran,
Door No.2/476, Gomathipuram,
6th Main Road,
Balaji Bhavanam,
Madurai - 625 020. 1st Respondent/1st Complainant
2. Tmt.Sri Vidhya Nelavoy,
W/o Balaji,
Door No.2/476,
Gomathipuram 6th Main Road,
Balaji Bhavanam,
Madurai - 625 020. 2nd Respondent/2nd Complainant
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3. SOTC House,
Represented through its Manager,
134, Valluvar Kottam High Road,
Chennai - 600 034. 3rd Respondent/1st Opposite Party
4. M/s.Balika Tours and Travel Private Limited,
Represented through its Manager,
101, West Marret Street,
Madurai - 625 001. 4th Respondent/3rd Opposite Party
5. Malaysian Airlines,
Represented through its Manager,
No.20, Dr.Radhakrishnan Salai,
Mylapore,
Chennai - 600 004. 5th Respondent/4th Opposite Party
Counsel for Appellant/Opposite party-2 : Mr.R.Pandivel, Advocate.
Counsel for Respondents-1&2/Complainants-1&2 : Mr.A.Liakat Ali, Advocate.
Counsel for Respondents-3 to5/Opp.parties-1,3&4 : Served Called Absent.
This appeal coming before us for final hearing on 16.06.2022 and on
perusing the material records, this Commission made the following:
ORDER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER.
1. Aggrieved by the order of the District Forum, the 2 nd opposite party preferred this appeal against the order of District Consumer Disputes Redressal Forum, Madurai dated 13.01.2016.
2. The facts of the complaint is as follows:
The first and second complainants are newly married couple and the first complainant is a doctor. They saw an advertisement made by the opposite parties 1 & 2 about "Malaysian Surprise" tour programme. Allured by the above advertisement they wish to avail the tour programme and approached the 3rd opposite party, 3 booking agent of first and second opposite parties who are tour operators. They paid total tour amount of Rs.44,000/- through third opposite party to first and second opposite parties. The opposite parties assured that they take necessary steps to get visa for this tour and they also arranged for accommodation food etc., On 24.03.2006 the complainant went to first opposite party office and enquired the visa information and met one Ms.Jenni, an employee of first opposite party. She informed that the' visa on arrival ' was arranged for them and when they boarding at Malaysia they will be issued visa. Believing the assurance they went to Airport and obtained boarding passes. However, they were stopped by immigration officials stating that 'visa on arrival' arrangement is not available at present. Shocked by this and without visa they were unable to fly to Malaysia. This fact was informed to the first opposite party. An officer of the first and second opposite party came to their rescue a little bit late. His effort to send them to Malaysia failed. Then, the complainants were taken to a hotel which was not to their liking. Then, the opposite parties arranged another hotel at Madras and the complainants were asked to stay. Thereafter, they were informed that due to power failure visa was unable to be obtained in time.
They also offered another alternative tour programme and requested the complainants to go for Thailand. Since, without going to Singapore as a Honey-Moon trip and returning to their home down making relatives and the complainants unhappy, they decided to accept the offer. However, due to the deficiency of service committed by opposite parties 1 to 3 the newly wedded couple suffered mental agony, inconvenience. For which they seek a compensation of Rs.5,00,000/- with cost.
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3. The second opposite party filed the written version stating that the District Forum at Madurai did not have jurisdiction as the cause of action never took place at Madurai. Moreover, as per the terms of the tour package only courts at Bombay courts alone have jurisdiction to try the claim. Furthermore it is not an obligatory on the part of the opposite party to get visa for the complainant. Though, the booking was done on 13.03.2006, despite continuous reminders the documents were received only on 16.03.2011. The date of departure was 18.03.2006. Due to power failure, Malaysian Consulate could not process the visa application . Since the point of entry being at Kuala Lumpur Airport and the complainants having valid return ticket the consulate advised that the complainants can proceed on as schduled and can obtain visa on arrival at the Airport. But, they were prevented at the Chennai Airport by officials under some wrong understanding that visa on arrival was not existence at the time. For this wrongful act of officials the opposite parties not to be held responsible. Moreover, as a generous gesture the opposite parties arranged for the stay for the complainants and offered food..and extra. Instead of Malaysian tour they suggested a tour to Thailand without receiving any extra amount from the complainants. Even the opposite parties did not mind about the loss of their money because of cancellation of Air ticket. The complainants were treated with due comfort and respect at Thailand. At this juncture there is no deficiency of service on the part of the opposite parties 1 and 2 and hence, the complaint is liable to be dismissed.
4. The third opposite party filed a separate written statement stating that he is only booking agent at Madurai and on his part there is no deficiency of service. 5 Similarly, the fourth opposite party Malaysian Airlines stated that they are un- necessary party and there is no deficiency on their part.
5. The District Forum perused the materials and pleadings. found the opposite parties 1 to 3 were committed deficiency of service and directed them to pay Rs.2,00,000/- jointly and also to pay Rs.20,000/- as litigation charges.
6. Aggrieved by the above order the appeal has been preferred by the second opposite party. In the appeal it is stated that the order passed by the District Forum is erroneous and perverse in nature. The order of the District Forum holding that the opposite parties had promised to obtain visa for the complainants is wrong and it failed to note the services offered to them at Thailand. The District Forum placed lot of importance and attention to the social status of the complainants and committed Grave injustice. The District Forum failed to note that the opposite parties are mear tour operators and they did not have any power to issue visa and even they cannot control consulate. Hence, they prayed to allow the appeal.
7. We heard both sides oral arguments and perused the written arguments.
8. Now the point for consideration is:
Whether the appeal is to be allowed or not?
9. Point: It is an admitted fact that the complainants are newly wedded couple, plan to avail the tour programme to Singapore offered by the first and second opposite parties as a Honey-Moon trip. They also paid charges through third opposite party. Because of having issue in obtaining visa their programme to Malaysia was cancelled and the complainants accepted the alternative tour arranged to Thailand by the opposite parties. It is the contention of the complainants that the opposite parties not diligent in getting visa for them to travel Malaysia. It is the 6 contention of the opposite parties that it is not their duty to get visa for the complainants and there is no deficiency or carelessness in their service.
10. The opposite parties also raised an objection that there is no cause of action arose at Madurai. On the other hand, the third opposite party is having office at Madurai and travel charges are paid by the complainants at Madurai through third opposite party to the first and second opposite parties. Since, the preliminary cause of action arose at Madurai we hold that a part of cause of action took place at Madurai.
11. By relying upon the Ex.B1 the opposite parties contended that only courts at Mumbai alone had jurisdiction to try any disputes arising out of the tour contract. In this respect the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force.
12. Furthermore the, National Consumer Disputes Redressal, Commission in Smt.Shanti
-Vs-
M/S. Ansal Housing & Construction ..
on 11 April, 2002 In its order held as follows:
"We do not think State Commission examined the whole issue in a pragmatic manner. Complainant is a consumer and raised a consumer dispute under the Consumer protection Act, 1986. To help and assist a consumer and to achieve the objects of the Act, Section 11 of the Act was amended".7
"This Section relates to the jurisdiction of the District Forum. Now a complaint could be filed against the opposite party not only at the place where he actually or voluntarily reside or personally works for gain but also where he carries on business or has branch office. The words carries on business or has a branch office were added by the amending Act of 1993".
"Jurisdiction of a District Forum is exclusively covered by Section 11 of the Act. For this we do not have to refer any provisions of the Code of Civil Procedure".
"Any provision of the agreement which oust the jurisdiction of a District Forum even from a place where the opposite party has a branch office cannot be held to be valid or binding. Moreover, the clause on which the complainant was non-suited refers to the jurisdiction of Lucknow Courts. District Forum is not a court as understood in the Code of Civil Procedure. That clause in the agreement will have no meaning as far as jurisdiction of the District Forum where the opposite party has even branch office is concerned".
Following the ratio, we hold that the District Forum at Madurai had jurisdiction.
13. The learned counsel for the appellant submitted that non issue of visa to the appellant was not in their hand and there is no obligation for them to obtain the visa for the complainants. Of course the issuance of visa is the prerogative rights of the concerned consulate. Granting visa or refusal of visa are within the purview of immigration officials. But, whether the opposite parties assured the complainant for getting visa or left this job to the applicant is another question. Nowhere in the objection, the opposite parties stated that obtaining visa is the sole responsibility of the complainant. On the other hand, on more than one occasion they admitted that they made endeavour in getting visa for the complainants and they have advised the 8 complainants that visa on arrival will be made ready to them. Especially, in para 13 of the written version it has been averred as follows "for all the tours booked by the complainants through their travel agent company co-ordinates for all requirements through the travel agent only ...... the booking was process by the second opposite party in Mumbai and the third opposite party was informed to forward the necessary documents in support of the complainants visa application. However, despite continuous reminders the documents were received only on 16.03.2011 ...... we immediately sending documents of Malaysian consulate for obtaining the complainants visa. Due to power failure the Malaysian consulate could not process the visa application". We perused the same.
14. From the above admitted statement we satisfied that the opposite parties 1 to 3 alone undertook the job of getting visa for their tour Malaysia. So, it is the service offered by the opposite parties to the applicants. Getting visa for the applicants is the part of the duty and service of the opposite parties. Admittedly due to visa problem their Malaysia tour programme was cancelled. Whatever be the reason for the failure in getting visa, we strongly satisfied that the failure in obtaining visa amounts to deficiency of service on the part of the opposite parties.
15. We analyze the issue in yet another angle. The opposite parties said in para 13 of the written version due to short notice that is from 16.03.2006 to 18.03.2006 and due to power failure as told by the consulate the visa was not obtained. The actual date of journey of the applicant is 24.03.2006 as evidence from Ex.A4 & Ex.A5. But, without knowing exact date of journey it has been wrongly mentioned as 18.03.2006. Even as per the version of the opposite parties they 9 received all the relevant documents on 16.03.2006 and more than a week was available for the opposite parties to get visa. But, they said due to power failure they are unable to get visa within 2 days. The reason of power failure is highly unacceptable to us. If the visa was refused for any other reason such as the eligibility of the complainants then it is different matter. But, visa was not obtained only because of some default by the opposite parties. If at all, they arranged a valid visa or a proper assurance or documents of about 'visa on arrival ' the tour programme of the complainants will be completed as they planned. Because of the deficiency committed by the opposite parties in getting proper visa or not making the complainants to travel Malaysia as planned by them amounts to deficiency of service.
16. If there is no mistake or deficiency on their part the opposite parties would not offered the applicant an alternative Tour programme. Simply, because the complainants accepted the alternative programme, will not absolves the liability of the opposite parties. In other words the alternative tour programme to Thailand is a solace to the applicant and it is not the service or the fruits /result expected from the opposite parties. So, the opposite parties cannot escape from compensating the applicants for their humility as a couple in the Airport. The inconvenience caused to them to stay at Madras for a night and their first travel experience as a couple was not upto their expectations are all has to be considered while granting and fixing compensation. In this juncture we wish to appreciate the efforts taken by the opposite parties in offering alternative tour programme to the complainants without any extra cost. At the same time, as already discussed the complainants ought to be compensated as there is clear deficiency of service on the part of the opposite 10 parties as held by the District Forum which we are in complete agreement. The amount of compensation granted by the District Forum is Rs.2,00,000/- seems to be little bit excessive nature to us. But, the complaint was filed in the year 2007 and after more than 15 years the above compensation seems to be very reasonable even calculating 9% percentage interest for the above sum. Under the circumstances we confirmed the entire finding and order of the District Forum and dismiss the appeal. However, we don't want to impose cost in this appeal and answered the point accordingly.
17. In the result, (1) The appeal is dismissed.
(2) The order passed by the Learned District Forum, Madurai made in C.C.No.103/2007, dated 13.01.2016 is hereby confirmed.
(3) No order as to cost in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 05th day of August 2022.
Sd/-xxxxxxxxxxxxx Sd/-xxxxxxxxxxxxxxxx
S.KARUPPIAH, N. RAJASEKAR,
JUDICIAL MEMBER. PRESIDING JUDICIAL MEMBER.
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Corrected