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Judgment
R.K. Agrawal, J., President
Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986, by the Opposite Party in the Complaint, the Petitioner herein, is to the Order dated 05.3.2018, passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (hereinafter referred to as the State Commission) in Appeal No.A/16/1126, whereby the State Commission has set aside the Order dated 10.08.2016, passed by the District Consumer Disputes Redressal Commission, Central Mumbai (hereinafter referred to as the District Commission), dismissing the Complaint, preferred by the Complainants/Respondents, and has partly allowed the Appeal, preferred by the Complainants/Respondents against the said dismissal Order.
The facts, giving rise to the filing of the Complaint, are that a Group of the Complainants/Respondents, mostly consisting of senior citizens with their spouses, had booked a three countries’ tour for Egypt, Greece and Turkey with the Opposite Party/Petitioner in October, 2012, which was scheduled from 23.09.2013 to 05.10.2013. The tour cost was Rs.1,30,990/- + Euro 1355, i.e. Rs.2,52,940/- with Euro valued at @ Rs.90/- plus taxes. After discount, the tour cost with taxes varied between Rs.2,29,000/- to Rs.2,40,000/- and the Complainants/Respondents had to pay the initial advance at the time of booking. Most of the Complainants/Respondents were repeat customers. About two months before the tour date, the Opposite Party/Petitioner asked the Complainants/Respondents to submit all the necessary papers, including Passport and Bank Passbook, for visa formalities. Schengen Visa was issued by the Greece Consulate on 22.08.2013, which was informed by the Opposite Party/Petitioner to the Complainants/Respondents by way of SMS on 25.08.2013. Egypt visa was issued on 28.08.2013 (Passport entry) but there was delay in sending SMS. Within 48 hours of receiving the SMS, the Complainants/ Respondents received phone calls from the Opposite Party/Petitioner that Egypt part of the tour was cancelled and rebate of Euro 155 would be given as compensation. It is alleged in the Complaint that it was a unilateral decision taken by the Opposite Party/Petitioner, without consulting the Complainants/ Respondents. As against the cancellation of 1/3rd part of the tour (i.e. 33% of the tour), the rebate offered was less than 6% of the total tour cost. Most of the Complainants/Respondents were not willing to join the tour of Greece and Turkey only at the said exorbitant final cost. They were told by the Opposite Party/Petitioner that in such situation cancellation charges of Rs.56,000/- per person would be charged. On protest, the Opposite Party/Petitioner offered additional refund of Rs.10,000/- and Rs.1,900/- for unnecessary Egypt visa fee. While the said refund amount was insignificant, it was paid only to those Complainants/Respondents who had visited the office of the Opposite Party/ Petitioner at Mumbai but was not given to those Complainants/Respondents who had booked the tour from other cities. The Complainants/Respondents were compelled to join the Greece and Turkey tour but they could not enjoy the tour to the extent they would have normally enjoyed. After return on 05.10.2013, they submitted a joint letter to the Opposite Party/Petitioner and demanded refund of 1/3rd amount of total tour cost paid towards cancellation of 1/3rd tour. On protracted protest, the Opposite Party/Petitioner agreed to refund an amount of Rs.20,000/- per person as a special consideration. Though the Complainants/ Respondents had not accepted the said offer, the Opposite Party/Petitioner on its own sent cheques on 10.10.2014, which had been accepted by them under protest. Vide their letter dated 18.11.2014, the Complainants/Respondents insisted for payment of refund in terms of their notice dated 28.07.2014, whereby they had sought refund of Rs.55,000/- per person. However, there was no reply by the Opposite Party/Petitioner. In this factual matrix, inter alia, stating that in view of the tour cost for the fresh tour offered for the year 2014 vis-à-vis the tour in question, i.e. tour offered for the year 2013, the Complainants/Respondents had been overcharged by the Opposite Party/ Petitioner to the tune of Rs.68,017/- per person plus taxes, the afore-noted Complaint was filed before the District Commission, praying for the reliefs stated therein.
Upon notice, the Opposite Party/Petitioner contested the Complaint and filed the Written Statement. It was stated therein that the Complainants/Respondents had booked the tour after being satisfied with the services of the Opposite Party/Petitioner. At the time of booking the tour, there was no problem in Egypt but later on there was political turmoil and it was not safe to travel in Egypt. Considering the safety of the tourists, Egypt tour was cancelled on 31.8.2013 and it was informed to all the Complainants/ Respondents. Proportionate cost i.e. Euro 155 and Rs.11,900/- was refunded to them. Subsequently, as a special consideration, additional amount of Rs.20,000/- was also refunded by the Opposite Party/Petitioner to the Complainants/ Respondents. It was further averred that all the Complainants/Respondents had joined Greece and Turkey tour willingly and they enjoyed the tour. The Egypt tour was cancelled due to political turmoil as it was not safe for the tourists. More than sufficient amount has been refunded to the Complainants/ Respondents, because of which the Opposite Party/Petitioner has suffered loss. There was no deficiency in service or negligence on the part of Opposite Party/Petitioner and therefore, the Complainants/Respondents are not entitled for the reliefs as prayed for in the Complaint and the Complaint was liable to be dismissed with cost.
After considering all the rival submissions of the Parties as also going through the evidence adduced and the material placed on record by them, the District Commission concluded that there was no deficiency in service on the part of the Opposite Party/Petitioner and dismissed the Complaint, observing thus:
“4) After hearing both the parties and after going through the record, following points arise for our consideration.
POINTS
Sr.no.
Points
Finding
1)
Whether there is deficiency in service?
No
2)
Whether the complainant is entitled for the relief as prayed?
No
3)
What Order?
As per final order
REASONS
5) As to Point No.1 & 2:- There is no dispute that all the complainants booked Egypt, Greece and Turkey tour with the opponent with was scheduled from 23/09/2013 to 05/10/2013. Egypt visa was issued on 28/08/2013. Thereafter, SMS were sent to all the complainants cancelling Egypt tour on 31/08/2013. According to the complainants cancellation of Egypt tour was the unilateral decision of the opponent, without consulting the complainants. On the other hand, it is the case of the opponent that considering political unrest in Egypt it was not safe for the tourist in Egypt. Therefore, decision was taken by the opponent. The opponent has produced evidence on record showing unrest in Egypt. Considering this evidence on record, we think opponent has rightly taken decision about cancellation of Egypt tour. We do not find any illegality in the decision of the opponent.
As per para no.1 of the complaint tour cost was Rs.1,30,990/- + 1355 Euro + taxes. Euro was valued @ Rs.90/-. The complainants got discount on this tour cost. As per para no.1 of the complaint Euro component was towards 12 days expenses for hotels, food, transportation, sight seen and incidentals. It was for 4 days in each of three countries. It means that expenses for each country were Euro 452. According to the complainants as 1/3rd part of tour was cancelled, they are entitled for refund of 1/3rd tour cost. Even if Egypt tour was cancelled, the complainants travelled to Greece and Turkey by flight. Therefore, they are not entitled for refund of flight charges. They are entitled for 1/3rd of local tour cost at Egypt which comes Euro 452. Admittedly, the opponent refunded 155 Euro to each complainant. Therefore, the complainants are entitled for balance Euro i.e. Euro 297 which comes to Rs.26730/- [@90]. As against this the complainants have received the refund of Rs.10,000/- + Rs.1900/- + Rs.20,000/- total Rs.31900/-. Thus, the complainants received refund of Rs.31900/-, though they are entitled only for Rs.26730/-. They have received refund more than their entitlement. The complainants have filed this complaint unnecessarily. It is submitted by the complainants that some of the group members have not received the amount. The complainants have not clarified in the complaint. Therefore it cannot be considered.
XXX XXX XXX XXX
Thus, there is no deficiency in service on the part of the opponent. Therefore the complainants are not entitled for the relief as prayed. …”
Feeling aggrieved with the Order passed by the District Commission, the Complainants/Respondents preferred the Appeal before the State Commission. The State Commission, on re-appreciation of the matter, set aside the Order passed by the District Commission and partly allowed the Appeal, preferred by the Complainants/Respondents, inter alia, observing thus:
“9. In this case the dispute is only in respect of return of amount in respect of cancellation of tour to Egypt. It is the contention of complainants that as out of three countries tour to one country was cancelled, they are entitled to refund of one third of tour amount. It is their contention that one third amount from Euro component and one third amount from rupee component be returned back to them. In this case it is particular to note that Euro component was collected by opponent from complainants for their stay in the respective countries. The opponent had collected 1355 Euro from each complainant for their stay in three countries. When the tour of one country i.e. Egypt was cancelled, they are entitled to get one third of Euro component from the same. However, it appears that opponent had only returned back 155 Euro to each of the complainants. Hence they were entitled to get one third of Euro component of 452 Euro from the opponent. However, opponent had refunded only 155 Euro to complainants and they were required to pay 297 Euro to complainants. It is the contention of opponent that looking to the rate of exchange prevailing at that time, opponent was required to pay an amount of Rs.26,730/- to each complainant. It is the contention of opponent that however they have already paid an amount of Rs.11,900/- and additional amount of Rs.20,000/- to each complainant, which is more than the amount to which they are entitle. However the contention of opponent in this respect cannot be accepted. The amount of Rs.10,000/- and Rs.1,900/- were recovered from each of the complainants for getting visa of Egypt. As they were not taken to Egypt they are entitled to get back this amount. Hence, it has become clear that from Euro component, although each complainant was entitled to get an amount of Rs.26,730/-, an amount of Rs.20,000/- only was given to them. Hence, each complainant is entitled to get an amount of Rs.6,730/- from Euro component from the opponent.
It is the contention of complainants that they are also entitled to get one third amount from rupee component. As against this, it is the contention of opponent that rupee component was collected for air fare and for meeting out other charges. That amount has already been expended and complainants are not entitled to get amount from rupee component. However contention of opponent in this respect cannot be accepted as complainants were not taken to Egypt. Their air tickets must have also been cancelled to Egypt and other air tickets for going to Greece and Turkey must have been obtained by the opponent. They must have received some of the amount after cancellation of earlier tickets and complainants are entitled to get the same. In that respect no calculation has been brought on record either by complainant or by opponent. We are of the opinion that an additional amount of Rs.4,000/- in that respect is to be given by opponent to each of the complainants.
It is the contention of complainants that for getting all these amounts they were required to make protest with opponent and after taking much efforts, opponent had given part of the amount to them. Under such circumstances, we are of the opinion that complainants are also entitled to get amount of compensation for mental agony sustained by them for recovering amount from the opponent. We are of the opinion that if opponent is directed to pay an amount of Rs.5,000/- toe each of the complainant towards mental agony then that will be a sufficient compensation to complainants. In this case the opponent had given only an amount of Rs.20,000/- to each of the complainant except the visa charges from Euro component. Hence we are of the opinion that each of the complainant is entitled to get an amount of Rs.6,730/- along with an amount of Rs.4,000/- from rupee component from opponent along with interest on that amount and are also entitled to get compensation of Rs.5,000/- from opponent. Looking to these facts of the case, we are of the opinion that appeal filed by the complainants is to be partly allowed by giving direction to opponent to refund the above amount to the complainants. Hence, we proceed to pass the following order:-
ORDER
Appeal is hereby partly allowed.
Order passed by the learned District Forum in consumer complaint no.165/2015 on 10/08/2016 dismissing complaint filed by complainants is hereby set aside. In place of it following order is substituted:-
Complaint filed by the complainants is hereby partly allowed.
Opponent is hereby directed to refund an amount of Rs.10,730/- along with interest on this amount at the rate of 9% p.a. from the date of deposit of amount till realization of amount by complainants.
Opponent is also hereby directed to pay compensation of Rs.5,000/- and amount of Rs.1000/- towards costs of litigation to each of the complainants.
Opponent to pay the amount of compensation and costs to each of the complainants within a period of one month from the date of passing of this order, otherwise, said amount will carry interest @ 9% p.a. from the date of order till realization of amount by each of the complainants.”
Against the Order passed by the State Commission, the Opposite Party/Petitioner is before us in the present Revision Petition.
Heard learned Counsel for the Parties and gone through the grounds taken in the Memo of Revision Petition and the documents filed along with it.
It is stated by the learned Counsel for the Opposite Party/Petitioner that the State Commission failed to appreciate that it was a three countries (Greece, Turkey and Egypt) tour and there was a political turmoil/unrest in Egypt, which prompted the Opposite Party/Petitioner to cancel the Egypt tour in view of safety and security of its customers; the cost of living in various countries, including the neighbouring countries, is different and, therefore, it is not proper to hold that since the tour to one country out of three countries had been cancelled, the Complainants/Respondents are entitled to 1/3rd of the amount paid towards entire tour; the tour cost paid by the Complainants/Respondents had two components, i.e. INR and Euro, wherein while INR component was for air tickets and expenses to be incurred by the Opposite Party/Petitioner towards its maintaining, operating and administrative expenses, Euro component was for the expenses to be incurred towards hotel accommodation, food, transportation, sightseeing and other miscellaneous expenses for 12 days in foreign countries; towards cancellation of Egypt tour, the Complainants/Respondents at best can claim refund of 1/3rd amount of cost paid in Euro component, i.e. Euro 452 being 1/3rd of total Euro 1355 paid by them; out of Euro 452, amount of Euro 155 has already been paid to each of the Complainants/Respondents and in addition thereto a total sum of Rs.31,900/- (Rs.10,000/- + Rs.1900/- + Rs.20,000/-) has also been paid and, therefore, nothing more can be directed to be paid to them; the visa fee for Egypt was Rs.1900/- and not Rs.11,900/-, as held by the State Commission, and the same was never refunded to the Opposite Party/Petitioner after cancellation of the tour; the Opposite Party/Petitioner purchases the air tickets in blocks, which are non-refundable, and in such a situation though on account of political unrest in Egypt it was forced to cancel the tour to the said country but had in fact incurred losses with respect to the said tickets. There is no deficiency in service on the part of the Opposite Party/Petitioner and the Order passed by the State Commission cannot be sustained.
On the other hand, learned Counsel for the Complainants/Respondents stated that the Order passed by the State Commission is just and proper, which needs no interference, and, therefore, the present Revision Petition is liable to be dismissed.
On appraisal of the evidence adduced by both the Parties, the District Commission had recorded a finding that there was a political unrest in Egypt, on account of which the tour in question to the said country was rightly cancelled by the Opposite Party/Petitioner. From a perusal of the record, it is evident that the said decision was taken by the Opposite Party/Petitioner unilaterally. However, being a professional and prudent tour operator, the Opposite Party/Petitioner was expected and required to consult the Complainants/Respondents and apprise them of all the pros and cons of the situation prevalent in Egypt at the time of tour or alternatively allow them to go there as planned by them, whatever be the consequence of the same, if they were reluctant to cancel the tour to the said country. Neither the Opposite Party/Petitioner consulted the Complainants/ Respondents in this behalf nor allowed them to go there and unilaterally took a decision to cancel the tour to Egypt, on account of which the Complainants/ Respondents’ desire to visit Egypt besides Greece and Turkey was shattered though they had already paid the entire tour cost in respect of all the three countries. In such a situation, even if the Opposite Party/Petitioner has suffered losses on the grounds to be discussed hereinafter, it cannot be said that there was no deficiency on the part of the Opposite Party/Petitioner in rendering services to the Complainants/Respondents.
As regards the plea of the Opposite Party/Petitioner that the visa fee for Egypt was Rs.1900/- and not Rs.11,900/-, as held by the State Commission, no supporting document has been brought on record either before the Fora below or before this Commission, in the absence of which we are also unable to say definitely whether the aforesaid amount of Rs.11,900/-, collected by the Opposite Party/Petitioner from the Complainants/Respondents, was towards visa fee or towards visa fee and the services to be rendered by the Opposite Party/Petitioner in this behalf. It is immaterial whether upon cancellation of tour to Egypt the Opposite Party/Petitioner has received back the visa fee from the Embassy concerned or not as it is an internal matter between the Opposite Party/Petitioner and the visa issuing authorities, for which the Complainants/Respondents, on whose behalf visa was to be obtained by the Opposite Party/Petitioner, cannot be made to suffer. We are, therefore, unable to agree with the stated plea. The State Commission has rightly observed that the Complainants/Respondents are entitled to get back the said amount as they were not taken to Egypt.
As far as the issue of non-receipt of refund on account of cancellation of the air tickets purchased by the Opposite Party/Petitioner for the Complainants/ Respondents and the resultant incurring losses by the Opposite Party/Petitioner is concerned, it may be stated that admittedly the said tickets were purchased by the Opposite Party/Petitioner in block, which is a business tactic adopted by the Tour Operators in their own interest though the same are non-refundable. In this view of the matter, non-receipt of refund on account of cancellation of air tickets from the Airlines concerned has nothing to do with the Complainants/Respondents.
Further, as regards the submissions of the Opposite Party/Petitioner that the cost of living in various countries, including the neighbouring countries, is different and, therefore, it cannot be said that the Complainants/Respondents are entitled to 1/3rd of the total cost of three countries tour upon cancellation of tour to one country, we find that in order to adjudicate upon the issue involved in the matter in an easy and understandable way, the issue of tour cost in respect of whole three countries tour vis-à-vis the tour to Egypt, which was cancelled, has been gone into by the Fora below. In the absence of any material/document being produced by the Opposite Party/Petitioner showing otherwise before the Fora below, it has been rightly concluded by the Fora below that upon cancellation of the tour to Egypt, which constitutes 33% of the tour, the Complainants/Respondents are entitled for 1/3rd of the entire tour cost paid by them.
The next contention of the Opposite Party/Petitioner is to the effect that the tour cost had two components, i.e. INR and Euro, wherein while INR component was towards air fare and for meeting other charges, Euro component was towards stay in the visiting countries and at best the Complainants/Respondents could have claimed refund of 1/3rd of the amount paid in Euro component, i.e. Euro 452 out of Euro 1355, as INR component had already been used/spent. Upon consideration of the material produced on record by both the Parties, the State Commission as regards INR component has awarded a moderate amount of Rs.4000/- to be paid by the Opposite Party/Petitioner to each of the Complainants/Respondents, and as regards Euro component the State Commission has affirmed the finding recorded by the District Commission to the effect that 1/3rd part of the tour was cancelled and, therefore, the Complainants/Respondents are entitled for refund of Euro 452 being the 1/3rd of the tour cost, meaning thereby that after payment of Euro 155 to each of the Complainants/Respondents, they are now entitled for Euro 297, which comes to Rs.26,730/- if calculated @ Rs.90/-. However, in view of discussion made in Para-11 above, the District Commission was not justified in observing that the total amount of Rs.31,900/- (including the amounts of Rs.10,000/- and Rs.1900/-), besides the amount of Euro 155, was already received by the Complainants/Respondents from the Opposite Party/Petitioner, which shows that the Complainants/Respondents have already received more than Rs.26,730/-, to which they were entitled.
In this view of the matter, we are of the considered opinion that the Order passed by the State Commission is just and proper, which needs no interference. We uphold the same. The Revision Petition is accordingly dismissed.