Date of Filing:19/05/2017

Date of Order:30/05/2019

THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated:30^Th Day of MAY 2019

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.1087/2017

Vs

ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This Complaint is filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) and to direct him to accept the submission of false supporting documents to get VISA to the German consulate in her favour, for refund of Rs.4,00,000/- paid towards Europe Trip and Rs.1,00,000/- towards interest on the sameand to passsuch other relief as this Hon’ble Forum deems fit. 

2.     The brief facts of the complaint are that, the complainant and her husband Balakarishna.G.K, their eldest son Chirag Balakrishna and youngest son Tanya Balakrishna planned to go for a Europe Trip during may 2015. OP by name Girish was recommended by her elder sister Sujatha Mahadev for obtaining VISA as he is a tour operator. He sent three different holiday plans and to confirm whether they are willing to travel through his agency and also informed that tickets to be booked well in advance and VISA to be obtained much earlier.  Upon their consent he booked tickets for them on 21.04.2015 for travelling to Europe from 25.05.2015 to 02.06.2015. He also informed that VISA applications to be filled and requested them to keep all documents ready. He visited their residence on 22.04.2015 and got the signature on VISA forms and also collected the required documents along with cheque for  Rs.3,00,000/- lakhs on Europe Tour  asadvance.

3.     On 25.04.2015 he sent another message requiring them to furnish  the work place address, children’s school /college address, telephone number, current designation of people working. The tour itinerary sent by OP was for 7 days European highlights with display having 1.5 days stay in Germany.  He applied for VISA on their behalf to German embassy at Bengaluru.  It is contended that, a different itinerary with hotel booking different from what was provided by him without informing them was submitted for VISA approval and informed that he did so as three days minimum stay in Germany is required for obtaining VISA from German consulate.

4.     On 08.05.2015, they were called for interview. They attended interview on 15.05.2015.  On 14.05.2015 i.e. one day before the interview through email OP informed regarding the different itinerary and different hotel booking for three days stay in Germany. 

5.     It is further contended that, in the application it was mentioned that self-planned itinerary instead of mentioning the name of the OPs agency (Kwality holidays). In the interview, they informed to the officer that it is a self-planned itinerary instead of organized by Kwality agencies. In view of the discrepancies, their application for visa was rejected and the same was intimated on 18.05.2015.  Even by visa application of her sister and her family were also rejected.  Both the applications were processed by the OP. 

6.     It is further contended that, since the date of travel (25.05.2015) was fast approaching, on 19.05.2015 they approached German consulate and they advised them to apply for VISA again.  OPs sent several mails on the said date to send visa application travel itinerary covering letter, hotel booking and declaration to be signed.  When they applied for VISA for the second time, OP. had changed the hotel accommodation which was different from the previous one booked and mentioned in the previous application. On 20.05.2015 OP collected all the tour documents, the VISA application, and Rs.20,000/- each as fee and applied for VISA.  On 22.05.2015, they approached German consulate to find the status of their application since they had confirmed ticket for travel. They were also told that their passport would be ready by that evening.

7.     It is contended that they were shocked to hear that they were denied visa again whereas, her sister and her family members were granted the visa for travel. The reason for rejection of the visa by the embassy was false hotel declaration.  When the same was enquired with the OP, OP informed that hotel documentation was changed in the second application as the previous hotel booking was automatically cancelled as it was temporarily blocked for visa application purpose and hence he had to make crush hotel bookings.  On both occasions, their visa application was rejected mainly due to the mistakes committed by the OP.  Op has given false documents and itinerary and hotel booking details to obtain Schengen Visa through German embassy and kept them in dark without informing as to what he has mentioned. The OP has collected Rs.5,00,000/- from them for booking tickets, tour expenses and for VISA charges. Hereturned only Rs.1,00,000/- towards airticket cancellation fee and refused to refund the balanceof amount on the ground that he has already paid the same to the tour operators in Europe. He also refused to arrange for a different trip on some other dates saying that he is not having money with him. Hence the complaint.

8.     Upon issuance of notice, OP appeared through their counsel filed its version and contended that he has not committed any mistake while submitting the VISA application,booking of air tickets and reservation made in the foreign travel including side seeing, stay, food and local transport.He arranged as per the request of the complainant and her sister Sujatha Mahadev to start the European tour from Germany and the process was completely explained to them  and after their approval, the arrangements were made for applying VISA,.The visa applied for the 2^nd time was successfully completed in respect of her sister and family members. As per the conditions of stay at Germany, to fulfill the visa conditions, have been increased for three days. 

9.     It is further contended that, three sets of different itineraries were given to complainant.All the information was provided in the application along with covering letter and explained to the complainant who read, understood and signed the letter and submitted the same along with other documents for VISA processing. Since he has not conducted any group tours, as such the tour arranged for the complainant was a self-planned tour though assisted by him.  Such type of tours are called self-planned tours and he has not conducted the said tour.

10.   The telephonic call made on 08.05.2015 informing the date of interview on 15.05.2015 was not at all intimated to him.  Whereas, the sister of the complainant informed regarding attending the consulate for visa.  It was his initiation that he sent the complete details for making themselves to prepare for any question to be answered regarding the VISA. He also requested them to go through all the details so that any questions can be answered without any hassles.  The complainant did not take it seriously for preparing to answer the questions and convince the consulate official which resulted in rejection of the VISA. Complainant behaved in a rough manner with the consulate official and have come to the conclusion that the traveller i.e. complainant has no knowledge of the details of the tour duration, of stay, arrival airport, hotel name and even the city that they are visiting and spoke in a confused manner which resulted in rejection of the VISA application for which the complainant has shifted the responsibility on him. The consulatepersons expects a person to know atleast the basic thing of his tour.

11.   Further Op contended that, the rejection of the visa is mainly due to the negligence of the complainant.  Since he has already made payment for land component i.e. hotel, food, side seeing and guide facilities to his European counterpart, i.e. star tours,they have refused to  refund the  amount sighting the rules and regulations which was explained to the complainant before starting the process of visa,and also while applying for the visa for the 2^nd time. They know that if the visa is rejected, and tour is cancelled, they will not get any refund of the amount. He has paid the amount received towards cancellation of the air tickets to the complainants.Inspite of opening communication with star tours requesting them to refund the amount paid, they refused to pay the same.  After much deliberation, they offered the applicant to rebook the tour in future and they would provide 10% discount in the arrangement which offer was rejected by the complainantand also requested him not to follow-up any further.

12.   It is further contended that, he returned the amount received from the airlines due to cancellation of the ticket without any delay whereas, the amount paid for land component i.e. Rs.6,32,626/- (Rs.6,360 pounds for eight(8) persons paid to European counterpart, that is the star tours through his account, cannot be returned as they refused to refund. The said amount was transferred to the StarTours much prior to the submission of the visa application which is precondition of Star Tours.  He was surprised to receive the notice after 2 ½ years when the complainant kept quite after receiving Rs.1,00,000/- from him. They also informed him that they are not going for any tour in the near future as they have no time.

13.   It is further contended that, since he has paid the amount received from the complainant to Star Tours and Air India towards VISA fee, land cost, air tickets, he has no money left with him and the amount received as refund has been paid to the complainant. Hence the question of refund do not arise at all and that he is not liable to pay any money to the complainant, that he has produced all the original documents inthat respect and prayed the forum to dismiss the complaint.

14.      In order to substantiate the case, Complainant and Ops filed their affidavit evidence along with documents. Heard the arguments. The following points arise for our consideration:-

                   (1)   Whether the complainant has proved the

                        deficiency in service on the part of the O.Ps?

(2)  Whether the complainant is entitled to

      the relief prayed for in the complaint?

15.   Our answers to the above points are:-

POINT 1 & 2:   In the Negative.

                        for the following:

REASONS

POINT No.1:-

16.   The Complaint, version documents produced and the oral evidence of the complainant and the Op has been perused by us in details. The admitted facts are that the complainant engaged the services of OP for VISA by paying the prescribed amount and as mentioned in the complaint and also mentioned in the version, the VISA application was rejected by the VISA issuing authorities.  The VISA application of the complainant and her family members were rejected on both occasions.  Though the complainant has mentioned the reasons for rejection of the VISA, the same has not been amplified by producing the document issued by the embassy reasoning for the rejection of the VISA. Both parties have produced the email correspondences and on perusing the same, it becomes clear that the OP in each and every step, has instructed the complainant the procedure to be followed and what to be done and what not to be done. When such being the case,  it cannot be held that there is deficiency in service on the part of the OP.

17.     In the ANNEXURE-1 it is mentioned as to how and where VISA to be applied.  It is as hereunder:

“Schengen visa have to be obtained from the embassy or consulate of the country where the main purpose of travel lies. Therefore, please check your travel plans before making your application to the German Embassy. In case of travel to multiple Schengen Embassy. In case of travel multiple Schengen countries. Please make your application to be embassy or the consulate where you will be staying for the maximum number of days, or from the point of first entry into the Schengen countries, if the duration of stay is the same in more than one Schengen country.”

18.   The Op has produced all the details of the documents wherein the working itinerary done for the VISA applied for the first time and the application was submitted along with all relevant documents on 04.05.2015 for the first time. It was rejected by the embassy. The working itinerary details along with documents have also been produced by the OP and submitted to the authorities on 20.05.2015. The same is also produced for applying for VISA for the 2^nd time and according to the complainant, the same was also rejected. It is also mentioned in the ANNEXURE-2 that what are all the documents to be submitted along with the check list. ANNEXURE-3 are the emails informing the complainant to study, check and prepare for VISA personal test on 15.05.2015 .When such being the case, it is to be held that due to negligent act of the complainant, the VISA was rejected for not satisfying the authorities regarding bona-fides to travels to the said countries.

19.   OP has admitted for having received the amount from the Complainant regarding the VISA expenses which has been paid to the consulate and it would not be returned.  ANNEXURE-5 is the amount paid receipts, vouchers, invoices for having paid 6360 U.K. pounds to STAR Tours for making arrangements for the tour itinerary of the complainant and for her family members. The correspondences clearly go to show that the said Star Tours have made arrangements in the hotels at Germany from 25.05.2015 to 26.05.2015 for one day and at Switzerland from 26.05.2015 to 29.05.2015 for three days and at France from 29.05.2015 to 31.05.2015 for a period of two days.

20.    It is also made clear in the said letter that  the reservations are confirmed and the cost of the tour INR is Rs.3,18,000/- and passengers has paid Rs.80,000/- the balance to be paid. The receipts have also been produced to the extent of Rs.6,03,744/- ANNEXURE-6 is the bank statement of the OP wherein the said amount received from the complainant has been transferred to the accounts of the STAR Tours.

21.   When all the above facts and circumstances are taken into consideration, and especially the email correspondences made by the OP with the complainant, giving suitable Directions, it cannot be held that there is deficiency in service on the part of OP, either in making application for the VISA or making tour arrangements in the countries which the complainant and her family members intended to visit. Hence we are of the opinion that the deficiency in service has not been proved to the satisfaction of this Forum and hence answer POINT NO.1 IN THE NEGATIVE.

POINT NO.2:

22.   For the reasons stated supra, OP is not having any money with him to refund the amount. The documents produced clearly go to show that he has transferred the amount to STAR Tours for making arrangements and the said Star Tours have paid the amount for hotel accommodation with daily breakfast, lunch and dinner as per the itinerary, sightseeing and excursion the main places of interest, channel crossing by P & O ferry’s or Euro Tunnel, Services of Star Tour manager throughout. It is also brought to our notice the terms and conditions of the STAR tours wherein it is mentioned that for coach tours 25% of the holiday cost to be paid in advance and the balance in four weeks prior to it.  The change in booking 25 pounds per person if it is more than 22 days prior to departure and 50 pounds if it is within 21 days to 14 days, and 100 pounds from 13 days to 8 days and if there is any cancellation of the tour more than 42 days 25%  of total holiday cost and 40%  of flight tours and within six days or less, 100% of the total holiday cost for coach tour or flight tours.

23.   When this is taken into consideration which was made known to the complainant, the complainant could not go for the tour for want of VISA which was rejected for the second time for the Belgium consulate on 20.05.2015 and hence the complainant could not take up the tour which was to commence from 25.05.2015 and hence the cancellation was less than six days and hence as per the STAR Tours terms and conditions, 100% amount to be forfeited. In view of this, the complainant is not entitled for any of the amount and any of the claim made in the complaint and hence we answer POINT NO.2 ALSO IN THE NEGATIVE and pass the following:-

ORDER

1. The Complaint is hereby dismissed. Parties are directed to bear their own cost.
2. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 30^th  MAY 2019)

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1: Copy of email correspondences.

Doc.No.2: Copy of refusal of VISA.

Doc.No.3: Copy of Passport of complainant.

Doc.No.4: Copy of the Passport of Chirag Balakrishna.

Doc.No.5: Copy of Refusal of VISA.

Doc.No.6: Copy of the Passport of Tanay Balakrishna.

Doc.No.7: Copy of Refusal of VISA.

Doc.No.8: Copy of the Passport of Balakrishna.

Doc.No.9: Copy of email correspondences.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW:1: SRI GIRISH of OP.

Copies of Documents produced on behalf of Opposite Party/s

Annexure-1: Copy of the checklist for Schengen visa.

Annexure-2: Copy of the e-mail correspondences.

Annexure-3: Copy of the details of Star Tours & Terms and conditions.

Annexure-4: Copy of mail.

Annexure-5: Copies of receipts and vouchers and

Annexure-6: Copy of the Statement of ICICI Bank.

MEMBER                PRESIDENT

A*