Date of Filing: 15.10.2010
Date of Order: 03.03.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20
Dated: 3RD DAY OF MARCH 2011
PRESENT
Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.
Smt. D. LEELAVATHI, M.A.LL.B, Member.
Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.
COMPLAINT NO: 2376 OF 2010
K.H. Narayana
“Hari Nilaya”, Near Urdu School
Gowri Kaluve, Chikmagalur 577 101 Complainant
V/S
The Chairman & Managing Director
The Kesari Tours & Travels (P) Ltd.
No. 35/1, Allopat Building
Cunningham Road, Bangalore 52 Opposite Party
ORDER
By the President Sri S.S. Nagarale
This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986.
The complainant submitted that he booked at the opposite party office at Bangalore for a tour to Spain, Portugal and Morocco, which was to commence from 08.09.2009. Complainant paid Rs. 1,15,080/- to the opposite party in two installments i.e. Rs. 20,000/- on 10.01.2009 and Rs. 95,080/- on 22.08.2009 and also furnished all the required documents to opposite party on 10.01.2009 itself. Opposite party sent electronic ticket and passenger itinerary receipt along with guests list to the complainant on 17.08.2009. Opposite party called the complainant on 05.09.2009 and informed him that MOROCCO has rejected his VISA. Complainant has submitted all the relevant particulars and documents as demanded by the opposite party at the time of booking of the tour itself. The rejection of the VISA of the complainant by MOROCCO Embassy is not due to the complainant’s fault but because of negligence of the opposite party in not furnishing the required documents to MOROCCO Embassy and due to this reason only the complainant’s VISA has been rejected by MOROCCO Embassy. Opposite party has deduced a sum of Rs. 33,096/- out of Rs. 1,15,080/- under the head cancellation charge and has adjusted the balance amount to complainant’s trip to Singapore. Opposite party has no right to deduct a sum of Rs. 33,096/- towards cancellation charges for the simple reason that the complainant has not cancelled the tour on his own but because of non getting of the VISA to MOROCCO coupled with the advice of the opposite party to complainant not to come to the tour. Deduction of Rs. 33,096/- towards cancellation of charges without any fault on the part of the complainant amounted to deficiency of service and the opposite party has exercised unfair trade practice upon the complainant. Complainant got issued notice to opposite party on 11.08.2010 demanding the opposite party to pay a sum of Rs.33,096/- with 18% interest p.a. Opposite party failed to pay the amount demanded by the complainant. Hence, the complaint to direct the opposite party to pay a sum of Rs. 33,096/- with interest.
2. After admitting the complaint notice was issued to opposite party and defence version filed stating that complaint is false, frivolous and baseless. The complainant visited the office of the opposite party Bangalore Branch and expressed his desire to visit the Spain, Portugal and Morocco. The complainant found that the tour known as ES and having tour code No. ES 080909/15 was most suitable to him. The complainant was informed at that point of time that the tour code No. ES 080909/15 would be departing on 08.09.2009 from Mumbai. The complainant was further handed over the Itinerary in respect to the said tour. The complainant carefully scrutinized the same and agreed and accepted to participate in the tour as per the details informed to him and as per the itinerary handed over to him. The complainant submitted the tour registration form to opposite party and paid Rs. 20,000/- as deposit and balance amount of Rs. 95,080/- aggregating total cost of Rs. 1,15,080/- was paid on 22.08.2009 thereby accepting the terms and conditions as set out in the registration form. As soon as opposite party came to know that complainant’s application for VISA was rejected by Morocco Embassy opposite party immediately informed the same on 04.09.2009 in the evening. Competent Authority of Foreign Embassy offices do not give any reason for rejection of the visa. The complainant had perused the K & S 2009 in which it is specifically mentioned that if the guest do not get the visa to visit the country then the opposite party is not responsible for the cancellation of tour. All tours undertaken by opposite party were governed by the terms and conditions as mentioned in K & S 2009 and all persons who had undertaken the tour were bound by the terms and conditions as mentioned in K & S 2009. The procedure for obtaining visa was also explained to the complainant at the time of booking of tour ES and the complainant after going through terms and conditions of the opposite party booked the tour. The cancellation charges of Rs. 33,096/- of the ES tour is as per the terms and conditions given in K & S of the opposite party and refunded back Rs. 46,516/- to the complainant and the balance amount of Rs. 35,468/- was adjusted against the tour cost of Singapore Tour which the complainant undertook. Opposite party denied that there was any negligence on the part of opposite party in not furnishing the required documents to Morocco Embassy due to which complainant’s visa has been rejected by Morocco Embassy. Hence, prayed to dismiss the complaint.
3. Respective parties have filed affidavit evidence.
4. Arguments are heard.
5. The points for consideration are:
1. Whether the complainant has proved deficiency of service on the part of opposite party?
2. Whether the complainant is entitled for the relief sought?
6. It is admitted case that complainant had booked with the opposite party for tour programme to Spain, Portugal, Morocco and he had paid an amount of Rs. 1,15,080/-. Opposite party collected all the documents of the complainant and registration form for obtaining visa but the Morocco Embassy rejected the visa. Therefore, the complainant could not under take the trip as booked earlier. It is also admitted fact that opposite party retained the amount Rs. 33,096/- of the complainant. The complainant has produced letter of the opposite party. As per the letter Ex. C 1 it is seen that the total cancellation charges is mentioned as follows:
1. Air ticket Rs. 26,400/-
2. Insurance Rs. 1,794/-
3. Visa Rs. 4,902/-
4. Total Rs. 33,096/-
7. The opposite party has refunded the balance amount to the complainant. As regards refund of the amount there is no dispute. The only point for consideration is whether the cancellation charge collected by the opposite party is justified or not? If it is held that opposite party has no right in law to take cancellation charges, then the opposite party shall have to be directed to refund the amount withheld. It is admitted fact that opposite party has applied to the Morocco Embassy for visa of the complainant and the visa was not granted to the complainant. The opposite party had booked air ticket earlier to grant of visa. In this way the opposite party now wants the charges of air ticket from the complainant. The opposite party has committed deficiency of service in booking air ticket in advance. The opposite party could have waited till the receipt of visa from the concerned embassy, thereafter air tickets could have been booked. For the mistake committed by opposite party the complainant shall not suffer unnecessary financial loss. It is the duty and responsibility of the opposite party to see that all the proper documents are collected and submitted to the visa authority. But, in this case the opposite party being a tour and travels agency had collected the amount from the complainant and applied for the visa. Unfortunately, visa was not granted. Therefore, the tour of the complainant was cancelled. The complainant is right in seeking entire amount paid by him from the opposite party. It is the duty and responsibility of the opposite party to get the refund of air ticket from the concerned airlines after coming to know rejection of visa. The opposite party has shown Rs. 1,794/- as insurance charges and Rs. 4,902/- as visa charges. But the opposite party has not produced any documents to show that it has paid insurance premium of Rs. 1,794/-. Opposite party has also not produced documents to show that visa charges of Rs. 4,902/- was paid to the concerned. Admittedly, no receipt or document is produced by the opposite party. Opposite party is claiming Rs. 26,400/- towards air ticket. Again opposite party has not produced any documents or air ticket to show that sum of Rs. 26,400/- had been paid towards the air ticket. The opposite party has given letter to the complainant that total cancellation charges was Rs. 33,096/- without any documentary proof or support. Therefore, retention of amount of Rs. 33,096/- by the opposite party is without any authority of law. The opposite party has no legal basis to withhold Rs. 33,096/- which is payable to the complainant. Complainant has proved deficiency of service on the part of opposite party. The opposite party is bound to pay Rs.33,096/- to the complainant because the opposite party has withheld that amount without any basis or authority of law. The complaint deserves to be allowed. In the result I proceed to pass the following:
ORDER
8. The complaint is allowed. The opposite party is directed to pay Rs. 33,096/- to the complainant within 4 weeks from the date of this order. In the event of non-compliance of the order within 4 weeks the above amount carries interest at 6% p.a. from the date of order till payment / realisation.
9. Send the copy of this Order to both the parties free of costs immediately.
10. Pronounced in the Open Forum on this 3RD DAY OF MARCH 2011.
Order accordingly,
PRESIDENT
We concur the above findings.
MEMBER MEMBER
