DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BATHINDA

C.C. No. 240 of 11-09-2018

Decided on : 29-10-2021

1. Paramjit Singh, aged about 58 years, S/o Sh. Gurmander Singh, R/o Village Dhunnike, Tehsil & District Bathinda.

2. Devinder Singh Manshahia, aged about 57 years S/o Sh. Surjeet Singh R/o Ajmer Singh Thekedar Wali Gali, Mansa. ........Complainants

Versus

1. Thomas Cook (India) Limited, Registered Office : Thomas Cook Building, Dr. D N Road, Mumbai 400001, through its Managing Director/Authorized Representative

2. Thomas Cook (India) Limited, Shop No. 17-B, Goniana Road, OPP. Main Gate of MSD School, Near Hanuman Chowk, Bathinda, through its authorized person.

    

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Kanwar Sandeep Singh, President

Sh. Shivdev Singh, Member.

Smt. Paramjeet Kaur, Member

Present

For the complainant : Sh. Arvinder Singh, Advocate.

For opposite parties : Sh. H S Aklia, Advocate, for OP No. 1

OP No. 2 exparte.

ORDER

Kanwar Sandeep Singh, President

1. The complainants Paramjit Singh & Devinder Singh Manshahia, (here-in-after referred to as complainants) have filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Thomas Cook (India) Limited and another (here-in-after referred to as opposite parties).

2. Briefly stated, the case of the complainant is that Thomas Cook (India) Ltd., introduced a tour package under the name of East European Dhamaka for the tour of cities Vienna, Budapeast and Prague for the period from 27-7-2018 to 2-8-2018 (for the duration of 6 nights 7 days). The complainants,who are close relatives to each other, wanted to avail the aforesaid tour package for which they contacted opposite party No. 2 at Bathinda who further gave contact number of Sheikh Anam who is Holiday Sales Expert of opposite party No.1. Mr. Sheikh Anam furnished the complete details to the complainants that it is a vegetarian pack for 6 nights and 7 days. He demanded a total sum of Rs.1,97,390/- for both the complainants and further assured that stay in the aforesaid cities was also to be provided by opposite party No.1 of its own as per tour program. Mr.Sheikh Anam assured the complainants that if for any reason the complainants are unable to go on said tour, the entire amount shall be refunded back.

3. It is alleged that as per tour program, the complainants deposited a sum of Rs.99,900/- each with the opposite party No.1 i.e. Rs.15,000/- on 29-5-2018, Rs.35,000/- on 7-6-2018 and Rs. 49,900/- on 16-7-2018 by the complainant Paramjit Singh while Rs.15,000/- on 29-5-2018, Rs.35,000/-on 6-6-2018 and Rs.49,900/- on 16-7-2018 by the complainant Devinder Singh through bank transactions. As per tour program, the opposite party No.1 had to provide stay to the complainants and the other tourists in Hotel IBIS, Mariahilfer Gurtel 22024, 1060, Wien, Austria from 27-7-2018 to 29-7-2018. The complainants applied for the Visa on their respective passports for the tour of the aforesaid Cities but the Austrian Embassy raised an objection regarding the credibility of the stay in the aforesaid Hotel before the deposit of Rs.49,900/- each by complainants on 16-7-2018. The complainants informed opposite party No.1 and Mr.Sheik regarding objection and requested them to refund the amount already deposited by them. They assured the complainants that it is a routine matter for them and they will reply to the objections raised by the Austrian Embassy and the complainants will get Visa for the same. On the assurance of the opposite parties and Mr. Sheikh Anam, the complainants deposited the balance amount of Rs.49,900/- with opposite party No.1 on 16-7-2018. Accordingly, opposite party No.1 also gave reply to the objections raised by the Austrian Embassy of their own but they rejected the Visa to the complainants on 26-7-2018 i.e. just one day prior to the date fixed for boarding the flight by the complainants. It is further allged that Visa to the complainants has been rejected only due to the reason that the stay to be provided by the opposite parties in Austria, was not found credible by the Austrian Embassy for which the complainants are not at fault as stay was to be provided by opposite party No.1 as per tour package. Despite the objection raised by Austrian Embassy, the opposite party No.1 did not deem fit, proper or necessary to change the venue for Stay in Austria rather remained adamant to provide stay to the tourists in the same Hotel i.e. hotel IBIS as a result of which, Visa was rejected. The complainants requested the opposite party No.1 to refund their total amount i.e. Rs.99,900/- each deposited by them with the opposite parties as their Visa was cancelled only due to fault on the part of opposite party No.1. The opposite party No.1 failed to refund any amount to the complainants despite repeated requests and e-mails. The complainants alleged that they suffered mental tension and agony and loss of reputation in the eyes of their family friends and relatives etc., as such, they are also entitled to damages/compensation.

4. On this backdrop of facts, the complainants have filed this complaint with the prayer for directions to the opposite parties to refund the amount of Rs. 99,900/- each to the complainants and also pay compensation to the tune of Rs. 50,000/- each in addition to Rs. 11,000/- as litigation expenses.

5. Upon notice, none appeared on behalf of opposite party No 2, as such, exparte proceedings were taken against it.

6. Opposite Party No. 1 appeared through counsel and contested the complaint by filing written reply. In written reply, the opposite party No. 1 has taken legal objections that this complaint is not maintainable as the averments made therein do not substantiate any willful fault, imperfection, shortcomings or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force, or as undertaken to be performed by opposite party No. 1 in pursuance to its contract with the complainants or otherwise in relation to the services provided by it. That the complainants have not approached this Commission with clean hands and have deliberately not disclosed the true facts. The complainants have filed a false and vexatious complaint. That the complainants have wrongly invoked the jurisdiction of this Commission.

7. As per opposite party No. 1 the correct factual position is that the complainants approached opposite party No. 1 through its online portal/website and thereafter they co-ordinated with the Chandigarh branch of the opposite party for submission of documents for VISA. The opposite party does not have a branch in Bathinda. Complainants have concocted a story only with a view to invoke the jurisdiction of this Commission. The jurisdiction of this Commission has been specifically excluded by the parties as per their agreement. That there is no branch office of Thomas Cook (India) Ltd., Bathinda, so opposite party No. 2 is required to be deleted from the array of the opposite parties. That the complainants have deliberately not disclosed that before booking the services of the opposite party from its website, they had accepted the governing 'Terms and Conditions' which constitute the binding contract between the parties. The opposite party No. 1 has mentioned some important clauses of the Terms and Conditions, the reproduction of which is not considered necesssary at this stage.

8. On merits, the opposite party No. 1 has pleaded that complainants have approached opposite parties on their own through their website/online portal. The opposite party is one of the oldest, most trusted and reputed holiday organizer, which offers to organize/book several kinds of travel services for its clients, which include stand alone services like booking of Air Tickets, Foreign Exchange etc., and at the same time it organizes Holiday packages wherein most of the services are pre-booked in advance. Such packages are usually more economical due to pre-booking of services from the service providers, however for the same reason entail strict cancellation charges which are clearly informed to the clients. The responsibility of having the necessary tour documents on the pre-determined date of travel for undertaking the tour like passport and visa etc., is of the intending passengers and in the event they cannot travel due to rejection or delay in Visa, they are still liable to pay the cancellation charges. It is clearly mentioned in the terms and conditions that the role of the opposite party is only limited to provide guidance for applying VISA. It is not responsible if it is rejected/delayed, and the clients are still liable to pay the cancellation charges. The complainants voluntarily booked a package tour marketed as 'East Europe Dhamaka' after comparing and going through the different kind of services available on the website of the opposite party and fully understanding and accepting the governing 'Terms & Conditions'. The complainants were free to choose the services being offered from any holiday organizer, which are always subject to the governing Terms, or to book services on their own. The opposite party No. 1 denied that the complainants contacted opposite party No. 2 at Bathinda to enquire about the program and details of the package.

9. It has been pleaded that opposite party No. 1 diligently and in the most bona fide manner provided the complainants with the same guidance/assistance as provided to all other intending travellers who wanted to travel on the group tour to Europe. The opposite party No. 1 booked some the most reputed Hotels for the tour in question. As regards Hotel IBIS, the same is part of the ACCOR group of hotels, which is one of the largest and most reputed group in the world, in the Hotels industry. It has been further pleaded that all the services booked for the group are same, yet the respective consulates/embassies may choose to grant the visa to some applicants and may reject the applications of some at its own discretion for which the opposite party No. 1 cannot be blamed in any manner. There was no deficiency in service on its part for booking the Hotel in Austria,

10. It is pleaded that in the rejection letter the Embassy has clearly mentioned that the VISA is being rejected as the Embassy is apprehensive about the purpose of stay based upon the documents submitted. It is no where mentioned that the credibility of stay in the hotel booked by opposite party No. 1 is being objected or is in doubt. The said reason for rejection is the most likely reason for rejection of VISA if the Embassy is not satisfied with the intention of applicant to return back to his own country. It has been further pleaded that complainants were fully aware and were repeatedly reminded that no refund is possible since cancellation of Tour in question qua the complainants was done only 1 day prior departure. Thus,100% cancellation charges were applicable as per the contract between the parties. The opposite party No. 1 denied that Visa was cancelled/rejected due to any fault on its part. After controverting all other averments, the opposite party No. 1 prayed for dismissal of complaint.

11. In support of their complaint, the complainants have tendered into evidence affidavit dated 11-9-2018 of Paramjit Singh (Ex. C-1), affidavit dated 11-9-2018 of Davinder Singh (Ex. C-2), photocopy of tour documents (Ex. C-3), photocopy of tour documents Hotel details (Ex. C-4), photocopy of e-mail and holiday quotation (Ex. C-5), photocopy of bank passbook (Ex. C-6), photocopy of account statements )Ex. C-7 & Ex. C-8), photocopy of letters (Ex. C-9 & Ex.C-10), affidavit dated 11-9-2018 of Maninder Singh Manshaia (Ex. C-11), photocopy of e-mails (Ex. C-12 to Ex. C-14) and closed the evidence. Counsel for complainant also placed on file translated copies of Ex. C-9 & Ex. C-10.

12. In order to rebut this evidence, the opposite party No. 1 has tendered into evidence photocopy of terms and conditions (Ex. OP-1/1) affidavit dated 2-1-2019 of Yogesh Kumar (Ex. OP-1/2), photocopy of duplicate receipt detail (Ex. OP-1/2), photocopy of hotel detail (Ex. OP-1/4), photocopy of tour detail (Ex. OP-1/5) and closed the evidence.

13. We have heared learned counsel for the complainants, opposite party No. 1 and have gone through the record.

14. These are undisputed facts between the parties that complainants wanted to avail East European Dhamaka tour package for the tour of Cities Vienna, Budapeast and Prague for the period from 27-7-2018 to 2-8-2018 for the duration of 6 nights 7 days offered by opposite parties and deposited a sum of Rs. 99,900/- each with opposite party No. 1 but due to rejection of Visa by Austrian Embassy, complainants could not avail this tour package.

15. The allegation of complainants is that Visa was rejected as Austrian Embassy raised an objection regarding credibility of the stay in the IBIS, Mariahilfer, Gurtel 22024, 1060, Wien, Austria from 27-7-2018 to 29-7-2018. The complainants requested the opposite parties to refund their amount already deposited but opposite parties assured that it is a routine matter for them and they will reply to the objections, but ultimately, Visa was rejected. The complainants have alleged that despite their repeated requests, opposite parties have failed to refund the amount deposited by them. Complainants could not avail the tour package, so offered by opposite parties due to fault of the opposite parties. When no services are provided by the opposite parties and could not be availed by complainants due to fault of the opposite parties then complainants were not liable to pay any charges. Hence, complainants are entitled to the refund of whole amount in addition to compensation for harassment as it was the responsibllity of the opposite partis to get the total process completed or guide the complainants, but they failed to provide services and rather deficient in service.

16. On the other hand, submission of learned counsel for the opposite party No. 1 is that as per terms and conditions of agreement, the role of the company was only to provide necessary guidance to the client for the purpose of applying Visa. It is specifically mentioned in the terms and conditions that company will not be responsible for non-issuance of visa due to receipt of incomplete/delayed documents from the clients. In the rejection letter, the Embassy has clearly mentioned that Visa is being rejected as the embassy is apprehensive about the purpose of stay based upon the documents submitted.

17. We have gone through the record and have given careful consideration to these rival submissions.

18. A perusal of 'Refusal of the Visa' letter reveals that Embassy in New Delhi has denied Visa for the reason that :

    “The submitted information on the purpose and conditions of the intended stay was not credible.”

19. The opposite party No. 1 has admitted that as per terms and conditions of agreement, the role of the company was only to provide necessary guidance to the client for the purpose of applying Visa. A persual of said terms and conditions reveals that document has not been got signed from complainant. It appears to be unilateral in nature and prepared for self serving purpose. If Visa was rejected due to any reason, whatsoever, the opposite parties cannot deny their responsiblity as it was only their responsibility to get the Visa issued to the complainants by proper submission of documents etc., as the whole tour package was to be managed by opposite parties.

20. It is a matter of common knowledge that a person who approaches such companies for availing tour package contacts them as a lay man and relies upon them for each and every step to be taken in this regard. In the case in hand, the opposite parties failed to get Visa to complainants which is a first step/initial stage of tour package and if a person donot get Visa, then he will not be able to go abroad and use/avail other facilities alleged to be provided by the opposite parties such as booking hotels, air tickets and foreign exchange etc., The complainants wanted to avail tour package of opposite parties and paid sufficient charges for availing the services so that there should be no hurdle in their visit but the opposite parties failed to provide promised service to complainants. The opposite parties were required to submit the documents of complainants in Emabassy in such a way, which would have established that the complainants are only visiting such countries as tourist through tour package arranged by opposite parties so that their credibility of stay should not have been challenged and Visa should have been issued to them, but as discussed above, opposite parties failed to do the needful rather deficient in service. Complainants should not suffer financial loss if they could not avail services due to fault of the opposite parties for which they have paid. Therefore, opposite parties are liable to refund the amount so deposited by complainants.

21. The opposite party No. 1 has refused to refund the amount deposited by complainants by stating that cancellation of tour in question qua the complainants was done only 1 day prior to departure, so 100% cancellation charges were applicable as per contract between the parties. The opposite parties have not placed on file any contract got executed/signed by both the parties. Moreover, tour was not cancelled by the complainants rather they could not avail the tour package despite deposit the amount with the opposite parties due to fault on the part of the opposite parties as they failed to get Visa issued to complainants. Thus, complainants are entitled to refund of the whole amount so deposited by them with the opposite parties in addition to compensation for harassment suffered at the hands of the opposite parties.

22. Resultantly, this complaint is partly allowed. The opposite parties are directed to refund the total amount deposited by complainants with interest @ 9%.P.A. from the date of deposit till payment. The opposite parties are further directed to pay Rs. 10,000/- as cost and compensation to complainants.

23. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order.

24. The complaint could not be decided within the statutory period due to heavy pendency of cases.

25. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced:-

    29-10-2021

    (Kanwar Sandeep Singh)

    President

     

     

    (Shivdev Singh)

    Member

     

    (Paramjeet Kaur)

    Member