Cox & Kings Ltd. & Anr vs Sajal Kumar Ray

M. Shreesha, J

Heard arguments on the Review Application. The Respondent/Complainant submitted that he had never received the notice and there was no occasion for him 'to refuse' and had filed a detailed written submission regarding the non-service of notice to him. Since we are of the opinion that the Complainant should be given an opportunity to be heard, the Review Application is allowed and the earlier order dated 23.07.2018 is set aside. Revision Petition No. 910 of 2018 is hereby disposed of afresh by the present Order.

For the sake of brevity the facts in the earlier order dated 23.07.2018 are being re-produced in the present Order.

Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 13.12.2017 in First Appeal No. 117 of 2016, passed by the West Bengal State Consumer Disputes Redressal Commission (in short "the State Commission").By the impugned order, the State Commission has concurred with the findings of the District Consumer Disputes Redressal Forum, Kolkata (in short "the District Forum"), which has allowed the Complaint in part directing the Opposite Parties jointly and severally to pay to the Complainant a sum of Rs.12,000/- towards cancellation of Air Tickets, Rs.9,900/- equivalent to US $150 for accommodation charges at Cairo for one day; compensation of Rs. 1,75,000/- for mental agony and harassment and Rs.10,000/- as litigation cost to be paid within 30 days from the date of receipt of the order, failing which the amount shall attract interest @ 10% p.a. till realisation.

Briefly put, the facts material to the Complaint are that the Complainant booked a tour of Egypt, for three persons for 7 nights and 8 days commencing from 08.01.2013 and paid to the Opposite Parties an amount of Rs.10,000/- on 08.12.2012, Rs.1,11,397/-on 10.12.2012 and 1,28,707/- 11.12.2012 towards tour expenses. It was averred that the Opposite Parties were informed about the pre scheduled programme of the Complainant's family of touring some places of Gujarat and it was required that all the Air Tickets to and fro from Mumbai and Egypt to be handed over to the Complainant, prior to the departure from Kolkata i.e. before 04.01.2013 to enable them to get confirmed tickets for Mumbai and their tour of Gujarat. Despite several requests, the Opposite Parties failed to provide the Air Tickets and failed to inform the correct flight schedule, on account of which the Complainant had to cancel the return tickets from Kolkata to Mumbai scheduled for 05.01.2013 and from Mumbai to Kolkata scheduled for 15.01.2013, for which the Complainant incurred a loss of Rs.12,000/-.

It was pleaded that the flight from Cairo to Mumbai was at 11 p.m. on 15.01.2013 and after getting the programme on 08.01.2013; through their agent, repeated requests were made to organize for accommodation for 15.01.2013 but the same was turned down by the Opposite Parties. It was stated that on 15.01.2013 they were supposed to reach Cairo at 7 a.m. but owning to a train accident they reached Cairo Airport at around 12:30 p.m. and stayed at the Airport for 16 long hours without accommodation or food and were put to inconvenience and hardship apart from having had to cancel their connecting flight tickets. The Opposite parties admitted their fault vide email dated 22.02.2013 and 31.05.2013 and finally issued a letter dated 02.07.2013 agreeing to compensate an amount of Rs.4,860/- and offered a gift voucher worth Rs.3,000/- per person. Dissatisfied with the offer made by the Opposite Parties, the Complainant approached the District Forum seeking the aforentoed directions against the Opposite Parties.

The Opposite Parties filed their Written Version stating that the Complainant is bound by the terms of the Contract; that the Complainant was provided with the tour itinerary giving the details as to the services which would be included in the tour; the tour itinerary clearly mentions the inclusions and exclusions; that it was clearly mentioned in the terms and conditions of the booking that the Service Vouchers along with the Air Tickets would be handed over to the Complainant approximately two to five days prior to the departure; that any objection with regard to the tour programme should have been immediately brought to the notice of the Opposite Parties; the Complainant never informed the Opposite Parties about their planned visit to Gujarat prior to their departure on 08.01.2013 not informed about the booking of the domestic tickets; the Complainant was very much aware of his departure programme, that the group was to catch a train on 14.01.2013 night and reach in the morning to board the flight scheduled for departure at 11 p.m. and that the Complainant on 06.01.2013 had changed the Air Tickets from Mumbai to Kolkata for 16.01.2013 and therefore, he was in agreement with the itinerary.

It was averred that the Complainant had booked the domestic tickets for Kolkata-Mumbai-Kolkata on 28.11.2012 itself. It was further pleaded that the Kuwait Airlines flight referred to by the Complainant, was not a direct flight , whereas the Egyptian Airlines flight which the Complainant travelled was a direct flight. Due to a major train accident the train got delayed midway to Cairo, which is a force majure event and the Complainant and his family members were able to board the return flight on 15.01.2013 itself, whereas the other passengers who were scheduled to depart missed the return flight to Mumbai because of the train accident. It was denied that the Complainant's family was put to risk and that a promise was made to provide accommodation or food till their departure. As a goodwill gesture and without prejudice to their rights, the Opposite Parties offered a gift voucher of Rs.3,000/- and refund of Rs.4,860/- but the Complainant refused to accept the same and instead demanded an amount of Rs.10,22,000/- which is unfair and arbitrary.

District Forum based on the evidence adduced allowed the Complaint in part with a direction to pay a sum of Rs. 12,000/- towards cancellation charges, Rs. 9900/- towards boarding/accommodation charges, Rs. 1,75,000/- towards compensation along with litigation costs of Rs. 10,000/- and the State Commission has confirmed the same.

The State Commission while dismissing the Appeal preferred by the Revision Petitioner herein, observed as follows:

"Thus, in the light of aforesaid provision of the Contract Act, we are inclined to hold that the agreement executed in between the parties was no contract at all in the eye of law. Objection of the Appellants in respect of territorial jurisdiction of the Ld. District Forum is, therefore, not at all tenable.

Coming to the merit of the case, from the narrative as stated by the Respondent, it is clear that he was totally misguided by the Appellants, e.g., although it was prominently advertised that it would be a 7 nights and 8 days tour, it was very cleverly kept under the wrap that only dinner would be provided on those days the tourists would be on cruise and two consecutive days after reaching Cairo and besides this, no other fooding arrangement would be made by the Appellants. To site another example, since in the tour itinerary, exact timing was not mentioned, there was no way for the Respondent to figure out that en route India, guests would be stranded at Cairo airport for 16 long hours and during that period no refreshment, let alone lodging facilities would be provided by the Appellants.

Although the Appellants quite predictably taken a belligerent stand before this Commission, disputing each and every allegation of the Respondent, whatever little details we could figure out from their letter dated 22.03.2013, it appears that in the said letter they candidly admitted their fault

Keeping in mind the aforesaid facts, we do not find any infirmity with the impugned order."

The facts not in dispute are that the Complainant paid an amount of Rs.10,000/-, Rs.1,11,397/- and Rs.1,28,707/- on 08.12.2012, 10.12.2012 and 11.12.2012 respectively for a tour of Europe for three persons for 7 nights and 8 days commencing from 08.01.2013. The brief point that falls for consideration is whether the Revision Petitioner herein was deficient in their service by booking a ticket in a flight departing from Cairo at 11 p.m., which necessitated the Complainant to remain in the Airport for 16 hours on their return journey and by not providing food and accommodation for the Complainants and their family.

Learned Counsel appearing for the Revision Petitioner drew our attention to the terms and conditions as well as the tour itinerary which clearly stipulates that in the evening of day 7 of the tour i.e. 14.01.2013, the tour participants shall board the overnight sleeper train from Luxor to Cairo and on reaching Cairo they shall be taken to the Airport for their flight back home. Breakfast was to be provided in the train itself. As can be seen from the record the Complainant was provided E-tickets via email dated 04.01.2013, marked as annexure G 1, G 2, G3 and G 4. In the email dated 04.01.2013, it was clearly stated that all tickets and confirmation vouchers are attached with this email for the Complainants reference. The Complainant himself pleaded that on 14.01.2013 there was an accident on the overnight train to the Cairo and that the Complainant and his family were transferred to the Airport to take the return scheduled departure on 15.01.2013 at 11 p.m. Despite the fact that there was delay on account of the train accident, the Complainant and his family members were able to catch their flight at Cairo Airport.

It is also relevant to extract the "Inclusions and Exclusion" mentioned in the itinerary for better understanding of the case:

"Inclusion:

·         Meet, Assist & Round Trip transfer in Cairo, Aswan, Luxor & Alexandria

·         3 Nights onboard M/S RA II (5*) or sim on full board basis

·         2 Nights @ Cario Hotel on B. B. Basis

·         2 Nights - 1sr Class sleeper Train round trip on half board basis

·         Day use at 5* Maritim Lusor Hotel on Bed only bais

·         Sightseeing & entrance fees as per below itinerary

·         Meals as per below itinerary

·         Local English speaking guide

·         Tips (USD 5 per person per day - obligatory)

Price does not include:

·         Entry Visa

·         Entrance inside any of three Pyramids of Giza & Mummification room inside the Egyptian Museum

·         Beverages (Water, soft & hard drinks in the Restaurant, Hotel or Cruise)"

The Complainant who is present in person vehemently contended that he was never informed about the fact that he would have to say for 16 hours in the Airport for his return journey and the tickets were never given to him in advance prior to the date of departure. As the exact timing was not mentioned in the itinerary there was no way for the Complainant to understand that on-route to India his family would be stranded at Cairo Airport for 16 hours without any refreshments or lodging facilities. He vehemently contended that alternate arrangements were made for other passengers namely Mr. Sunil Kumar Arora (four members) and Mr. Reddy (two members) from Delhi and Chennai respectively and were provided fresh air tickets, food and accommodation on 15.1.2013 as they had missed their flights due to the rail accident, it is not understood as to why the same arrangements were not made for the Complainant and his family despite repeated requests.

As against this argument Ld. Counsel appearing for the Revision Petitioner submitted that two families whom the Complainant was referring missed their flight back home and, therefore, alternate arrangements were made whereas the Complainant took the flight back home as scheduled and, therefore, there was no question of making any alternative arrangements for him. In fact, the refund was offered to the Complainant as a goodwill gesture towards full and final settlement of the matter.

A perusal of the material on record establishes that the Air Tickets from Kolkata-Mumbai-Kolkata were booked on 28.11.2012, whereas the Petitioners were approached for booking a tour on 04.12.2012. Therefore, the pleading made by the Complainant that they had to cancel the round trip Air Tickets because the Revision Petitioner failed to provide them timings of the flight and the tour tickets prior to 04.01.2013, is unsustainable.

For better understanding of the promised terms, the relevant portion of the itinerary on 14.01.2013 and 15.01.2013 is produced hereunder:

"Day 7: Onto Cario. Optional Hot Air Balloon Flight: Luxor East and West Bank.

Overnight Train to Cairo 14.01.2013

Today, disembark for your Nile Cruise.

Early this morning, you may avail of a 40 minute hot air ballon ride over the West Bank Luxor viewing the Ramesseum temple, Medinet Habu temple, desert, farm land and in the distance the mighty river Nile, An unforgettable experience! Later, we cross over to the west bank of the Nile River to visit the Valley of the Kings, Hatshepsut Temple and the Colossi of Memno, continue to visit the East Bank where you will have the chance to visit the Karnak & Luxor temple.

Late in the evening,

Transfer to the railway station to board you overnight sleeper train to Cairo.

Note: Since your sleeper train is later in the evening, you will be provided a day use accommodation.

[overnight on board (B&D)]

Good times never end! As you proceed to the airport for your flight back home, relive the high points of your Cox & Kings Land of the Pharaohs tour. We are confident you will join us again, sometime soon.... (B either on the train or onboard the flight)"

Though we find force in the contention of the Revision Petitioners that it is a group tour and, therefore, all the passengers were taken in a group to the Airport and were booked in different flights based on the availability and that the itinerary of the group tour is pre-designed, there is no documentary evidence to establish that the Complainants were informed much prior to their departure and the tour regarding the return itinerary. In fact, there is no specific reference anywhere with respect to the exact date on which the Complainants were informed of the flight timings in advance to their scheduled departure on the group tour.

The Complainant who is present in person before us today submitted that he was given a programme on 08.01.2013 i.e. the date of the commencement of the tour programme. When the flight tickets were handed over to him only on the date of departure, the Complainant submitted that he had no opportunity to change the flight. However, he made repeated requests to the tour operator that the family could not be stranded in the Airport for 16 long hours without any refreshments or alternate arrangements being made. In fact, in reply to the questionnaire furnished by the Complainant before the State Commission, the Opposite Party has clearly stated that alternate arrangements were made for the other families because they missed their flights, but on the other hand, no alternative arrangements were made for the Complainant and his family, only because they were scheduled to leave on the fixed flight. This goes to show that the entire schedule of the departure i.e. the long 16 hours wait in the Airport was known to the Revision Petitioners but was never communicated to the Complainant to give him an opportunity to exercise his choice.

Though the itinerary does not provide for any food and accommodation, we agree with the concurrent findings of both the Fora below that in the absence of specification of any exact timings in the itinerary the Complainant would not be knowing that he would be in the Airport for such long hours prior to his departure and, therefore, we are of the considered view that not informing the Complainant in advance regarding the schedule thereby leaving the Complainant in a situation where he could not exercise his opportunity of choice and had to undergo mental agony in the Airport and on this limited point we are of the considered view that the Revision Petitioner is deficient in service and we award a reasonable compensation of ₹75,000/- along with costs of ₹10,000/- to be paid within four weeks from the date of this order failing which the amount shall attract interest @ 10% p.a. from the date of filing of the Complaint till the date of the realization. The order of the State Commission is modified accordingly.