BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 26th day of August 2015
Filed on :04-02-2013
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.87/2013
Between
Amarjit Singh, : Complainant
S/o. Gopal Singh, (By Adv. George Cherian
Palm Green Villa, Karippaparambil,
Kunjan Bava Road, HB-48, Panampilly Nagar,
Ponnurunni, Vytilla P.O., Kochi-36)
Kochi-682 019.
And
M/s. Royal Omania Tours and : Opposite party
Travels, Palal Towers, (By Adv. K.J. Kuriachan,
M.G. Road, 36/3081A, Udaya Nagar, Kaloor,
Ernakulam-682 019. Kochi-11)
Rep. by its Managing Director.
O R D E R
Cherian K. Kuriakose, President.
This complaint filed is by one Mr. Amarjit Singh for and on behalf of his family who had undertaken a tour programme to Switzerland with the aid of the opposite party. The opposite party was approached by the complainant for arranging visa, Swiss pass and accommodation for the tour party for a long planned holiday travel to Switzerland . The opposite party is a Travel and Tour agency undertaking group tours to Europe, Holy Land and other locations. The opposite party had approached the complainant offering high and value added, hustle free travel services and accommodation at Switzerland and submitted their itinerary dated 15-03-2012 of the opposite party to the complainant. The opposite party during the finalization of the itinerary had undertaken the complainant to provide an independent house accommodating 14 persons for an amount of Rs. 3,38,175/- at Switzerland, besides arranging visas, Swiss pass, and Insurance. The complainant had accordingly provided the opposite party an amount of Rs. 1,00,000/- on 09-04-2012 as advance payment. Thereafter as requested by the opposite party the complainant had paid a further amount of Rs. 4,00,000/- on 06-06-2012 and Rs. 3,98,728/- on 20-06-2012, totalling an amount of Rs. 8,98,728/-. The itinerary provided to the complainant was a tour programme commencing on 23-06-2012. The travel document was given by the opposite party to the complainant only three hours prior to scheduled departure time. From the details given by the opposite party it was seen that the opposite; party had collected Rs. 1,19,781/- from the complainant and Rs. 66,545/- totalling to an amount of Rs. 1,86,326/- as against the actual visa fee of Rs. 7,000 x 14 equal to Rs. 98,000/-. Further an amount of Rs. 23,360/- was charged as expenses paid to Mr. Joyichan for travelling to Bombay for Visa. That was not informed earlier to the complainant and that was not agreed to be paid by the complainant. A further amount of Rs. 40,417/- was collected as Government taxes for which no bill or invoice was given to the complainant. As against the agreed service charges of Rs. 2,500/- per head, an extra amount of Rs. 15,845/- was charged by the opposite party from the complainant. On arrival at Switzerland the complainant was shocked to find that instead of promised independent house at Switzerland, the family members were provided accommodation in 3 single apartments against the offer of Rs. 3,38,175/- for promised independent house at Switzerland. The opposite party had charged an amount of Rs. 5,45,279/-. There was no T.V in the room and the service of the clearing of the room undertaken was not made available. As against the promise the cost of the Mount titles passes were not paid by the opposite party and it had to be paid by the complainant paying Rs. 40,000/-. When the complainant had e-mailed to rectify the defects on the part of the opposite party, by an another e-mail dated 25-06-2012 the opposite party had promised the complainant for whatever service were not given, the opposite party had confirmed to the complainant such amount would be refunded. The complainant had to suffer difficulties losses and inconveniences due to the non-arrangement made by the opposite party. The opposite party, without explaining the lapses committed by them and without accounting for the same, handed over two cheques to the complainant on 22-11-2012 for an amount of Rs. 20,160/- and Rs. 19,323/-. The complainant accepted the cheque under protest. Thereafter the complainant had handed over the detailed claim to the opposite party on 20-12-2012 and such a claim was not replied even after 45 days thereof. There is negligence and deficiency in service on the part of the opposite party. The opposite party had adopted unfair trade practice. The complainant is entitled to get back the excess amount collected from him as against the actual and is also entitled to get compensation and costs of the proceedings.
2. Notice was issued to the opposite party who accepted the same and appeared and contested the matter by filing a version contending inter-alia as follows:
The complaint is not maintainable. It is admitted that the complainant and 13 others joined the travel to Switzerland which commenced on 23-06-2012 and which has been undertaken by the opposite party. The trip so conducted was of 14 persons including the complainant. Out of the 14 persons 10 were adults and remaining others were children. The package cost for adult was Rs. 1,09,000/- and per child Rs. 62,000/-. This fact was intimated to the complainant by email dated 09-04-2012. Accordingly the total package cost agreed for 14 persons was Rs. 13,38,000/- and this amount included onward and return airfare, home, food and accommodation, visa fee, insurance charges etc. There were 14 passengers for trip and they were not family members of the complainant as alleged. 13 persons by themselves took the onward and return air ticket fare directly through Qater Air Tickets on payment of Rs. 4,20,205/-. The opposite party had purchased air ticket only for one passenger Mr. Gurucharan Kaur on payment of Rs. 43,655/-. The 13 passengers themselves had arranged their ticket on 19-03-2012 and the single ticket on 19-03-2012 and the single ticket for the was taken on 28-04-2012. Therefore there was considerable fare difference. The amount paid by the complainant on 09-04-2012, 06-06-2012 and 20-06-2012 are admitted. Alltogether an amount of Rs. 8,98,728/- was received towards the tour package for the 14 persons including the complainant. To this amount an amount of Rs. 4,20,205/- (cost of air fare) was paid by the complainant which was added making the total amount of Rs. 13,18,933/-. The total package cost for 14 persons as per the itinerary was Rs. 13,38,000/-. However the amount paid directly to the opposite party and the amount paid towards ticket fare for 14 persons totaling to only Rs. 13,18,933/-. Therefore the opposite party had collected only Rs. 19,067/-. Less that the amount announced as package amount. The opposite party had never offered an dependent house accommodation for 14 passengers as alleged. Earlier the opposite party had only mention total cost of package and the same cannot subdivided under different head as stated in the complaint. The accommodation provided to the tour party at Switzerland was excellent and the contentions otherwise made by the complainant are false. The passengers made some complaints regarding claiming and on that account the opposite party had made a refund of rs. 20,160/- and Rs. 19,323/-. The opposite party had arranged passes for the site seeing and the contentions taken otherwise are false. The opposite party had already made refund for the passes purchased by the passengers by the themselves. The passengers had not incurred any extra expenses for the tour package and the claim for refund of Rs. 14,000/- towards extra expenses is untenable. There was no room for complaint regarding the tour package undertaken by the opposite party. The passengers did not suffer any loss as alleged. There was no negligence or deficiency on service on the part of the opposite party. The complainant is seeking relief for all copassengers including the complainant through this complaint which is impermissible. The complaint instituted by the complainant alone is not maintainable. The complainant has no authority to represent other passengers of the tour package. Therefore the Consumer Complaint is sought to be dismissed.
3. The evidence in this case consists of the oral evidence of PW1, the complainant and Exbts. A1 to A8 on the side of the complainant. Exbts, B1 and B2 are the documents relied by the opposite party who did not adduce oral evidence.
4. The following issues were settled for consideration.
i. Whether the complaint as framed by the complainant is maintainable?
ii. Whether the complainant has proved deficiency of service on the
part of the opposite party as alleged ?
iii. Was there any instance of unfair trade practice on the part of the
opposite party, proved by the complainant ?
vi. Reliefs and costs.
5. Issue No. i. It was contended by the opposite party that the complaint filed by the complainant Shri. Amarjit Singh alone for and on behalf of the other 13 persons is not maintainable. Accordingly, the learned counsel should have some authorization of the part of the co-passengers to file this Consumer Complaint. The learned counsel for the complainant on the other hand argued that the complainant Shri. Amarjit Singh had paid the amount for the entire tour package from his own account and the deal was fixed between the complainant and the opposite party directly and not with the intervention of the other members of the travel party. A consumer complaint could be filed by any person for and on behalf of a group of persons. If at all they had suffered deficiency in service or had suffered with unfair trade practice on the part of the opposite party, in this case, the deal was fixed between Shri. Amarjith Singh, the complainant and the opposite party. Therefore the impleading of all the members in the party array is not found to be a successful argument. We find the issue in favour of the complainant and find that the complaint as brought is maintainable.
6. Issue Nos. 2 & 3. The contention of the complainant was that he had made a deal with the opposite party for arranging the visas, Swiss pass and accommodation for the complainant and his family to travel to Switzerland. On the other hand the contention of the opposite party was that the travel arrangements were part of tour package which was contended to the complainant as per Exbt. B1, wherein it was stated that the package cost per head was Rs. 1,09,000/- and package cost per child was Rs. 62,000/-. Thus the total amount for 14 passengers as total cost of tour would have been Rs. 13,38,000/-. It is an admitted fact that the complainant had paid the amount to the opposite party on different occasions making a total of Rs. 8,98,728/-. The complainant had paid the ticket charges for 13 passengers at Rs. 4,20,205/-. All these amount make a total of Rs. 13,18,933/-. The complainant was issued with Exbt. B1 e-mail in his address. Since it is an email communication under the Information Technology Act it is to be presumed that the email was properly communicated to the complainant and that the communication was received by the complainant. The complainant did not seen to have send any reply to the email disagreeing with the said proposal. It is the contention of the complainant that the travel arrangements with the opposite party were only for the remaining part of the travel programme other than the payment of the air fare. If that is so it was the bounden duty of the complainant to prove such an independent contract between the complainant and the opposite party. The complainant had failed to produce any document to prove that there were any independent arrangements between the complainant and the opposite party other than what is seen from Exbt. B1. The complainant had produced Exbt. A1 itinerary, it is a replica of the itinerary seen in Exbt. B1. What was produced by the complainant as Exbt. A1 is only itinerary and not a copy of the contract. The complainant has not Brought out anything in evidence to show that the agreed amount of the tour package was not what was borne out in Exbt. B1. IF the complainant had different case he did not agree with the Exbt. B1 he ought to have produced the actual original agreement between the complainant and the opposite party regarding the travel and tour arrangements. The learned counsel on the other hand harpic upon the fact that the allegations of the complainant were not specifically denied by the opposite party and therefore the complaint must be deemed to have proved. We cannot accept such fantastic theory brought forward by the complainant that all allegations made in the complaint need not be controverted by the opposite party, will have to be deemed to be admitted. The opposite party had specifically denied all the allegations in the complaint. The opposite party had never admitted any of the allegations contained in the complaint. Therefore the burden of proving regarding the allegations made is entirely on the complainant. In the absence of any evidence to substantiate that there was an agreement between the complainant and the opposite party to collect only the actual amount spent by the opposite party for the tour package. The opposite party is a business concern and they are sure to make profit out of the business. Going by the contentions of the complainant and the claim for refund it is seen that the opposite party had through all these services to the complainant at a cost of Rs. 2,500/- per passenger. If the complainant was sure about such a covenant between the complainant and the opposite party. It should have been the bounden duty of the complainant to prove the same by producing the relevant documents. In the absence of any such document we find that the allegation of the complainant has not been proved by providing reliable evidence. On the proved facts, we find that there was any deficiency in service on the part of the opposite party as such. The opposite party had admitted certain deficiency for which they had made refund. Therefore we find that there were no subsisting grievances for the complainant to claim compensation for the alleged deficiency of services. In the absence of production of the brochure or the promises made by the opposite party, who had lured the complainant towards taking up a proposal for a tour package we find nothing in evidence to prove that there was any unfair trade practice. In the above circumstances we find the issues are against the complainant.
7. Issue No. iv. Having found issues number 2 and 3 against the complainant we find that the complaint deserves dismissal and accordingly we dismiss the complaint without any order as to costs.
Pronounced in the open Forum on this the 26th day of August 2015
Sd/- Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Copy of order despatched on:
By Post: By Hand:
