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Judgment
Dr. Inder Jit Singh,Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner against Respondents as detailed above, under section 21 of Consumer Protection Act, 1986, against the order dated 02.04.2014 of the State Consumer Disputes Redressal Commission, Tamil Nadu (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 885 of 2011 in which order dated 20.07.2011 of District Consumer Disputes Redressal Forum, Mylapore, Chennai (North), (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 216 of 2010 was challenged, inter alia praying for setting aside the order dated 02.04.2014 of the State Commission.
While the Revision Petitioner (hereinafter also referred to as Opposite Party) was Respondent before the State Commission and Opposite Party before the District Forum and the Respondent(s) (hereinafter also referred to as Complainant) was Appellant before the State Commission in FA No. 885 of 2011 and Complainant before the District Forum in Complaint No. 216 of 2010.
Notice was issued to the Respondent(s) on 30.01.2015. Parties filed Written Arguments on 13.04.2021 (Petitioner) and 02.04.2024 (Respondent) respectively.
Brief facts of the case, as presented by the Complainant and as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that: -
(i) The Complainant/Respondent along with his five family members wanted to tour Europe during August, 2010 and approached the Opposite Party/Petitioner to arrange tickets for them. As per the request of the Opposite Party, Complainant paid a sum of Rs.40,000/- through credit card on 15.06.2010 and another sum of Rs.50,000/- by wire transfer on 30.06.2010, totaling of Rs.90,000/- towards advance and handed over all the passports of all the persons to the Opposite Party for booking tickets.
(ii) The Complainant made arrangements to obtain Visa for their tour but unfortunately all the passengers could not obtain Visa and they were obliged to cancel the said tour. On 29.07.2010, Complainant intimated the Opposite Party about the cancellation of the tour and demanded the refund of the advance sum of Rs.90,000/-.
(iii) Opposite Party utilized the said amount for making hotel bookings in London without the instructions of the Complainant and even without the confirmation of the tickets and Visa. On 13.08.2010, Complainant’s wife Mrs. Shanti Nagarajan through an e-mail to the Opposite Party calling upon them to refund the said amount but Opposite Party failed and neglected to refund the said sum of Rs.90,000/-.
(iv) Complainant alleged that the act of the Opposite Party amounts to deficiency in service and unfair trade practice. On 26.08.2010, Complainant sent a legal notice to Opposite party calling upon them to refund the said sum of Rs.90,000/- together with interest @18% per annum from 29.07.2010 till date. Opposite Party acknowledged the receipt of legal notice and on 06.09.2010, sent a reply requesting for booking ID/booking reference no. through which transaction was made for further action. On 20.09.2010, Complainant furnished the booking ID No. through his advocate by fax but Opposite Party neither complied with the demand contained in the legal notice nor sent any reply thereto till date. Hence, the complaint was filed.
Vide Order dated 20.07.2011, in the CC no. 216 of 2010 the District Commission has dismissed the complaint and passed the following order:
“The complainant has miserably failed to prove the negligence or deficiency in service on the part of the opposite parties, then the complainant is not entitled to any compensation as sought for in the complaint. Accordingly the complaint has to be dismissed.
In the result, the complaint is dismissed. Considering the nature of proceedings there is no order as to costs.”
Aggrieved by the said Order dated 20.07.2011 of District Commission, Complainant appealed in State Commission and the State Commission vide order dated 02.04.2014 in FA No. 885 of 2011 has passed the following order.
“In the result, the appeal is allowed setting aside the order of the District Forum and the opposite parties are directed to pay jointly and severally to pay to the complainant a sum of Rs.90,000/- (Rupees Ninety Thousand only) towards refund of the money paid to the opposite parties by the complainant, and to pay a sum of Rs.5,000/- (Rupees Five Thousand only) as compensation for mental agony; and to pay costs of Rs.2,000/-. Time for compliance: One month from the date of receipt of the copy of the order.”
Petitioner(s) have challenged the said Order dated 02.04.2014 of the State Commission mainly/inter alia on following grounds:
i. The State Commission has utterly erred in not appreciating the immediate previous clause of outbound terms and conditions on which it has solely relied. The State Commission failed to appreciate a relatively important clause of outbound terms and conditions, wherein the Respondent was supposed to intimate Petitioner at least 45 days prior to the said rejection or denial of visa. In this case since the Respondent didn’t intimate Petitioner about the said denial of UK visa until only 9 days before the schedule date of departure therefore, Petitioner was under strong presumption that Respondent is in hold of valid visa of UK and accordingly the booking for Complainant’s accommodation in London was confirmed by Petitioner.
ii. The State Commission failed to appreciate that in an International tour, Respondent cannot expect Petitioner to make confirmed booking at the end hours. The Petitioner needs at-least 45 days’ time to make confirmed booking (accommodation/air-tickets/sightseeing) of international trip and this was the reason why this particular clause of 45 days prior intimation was added in the outbound terms and conditions which was duly accepted and signed by Respondent.
iii. The State Commission while pronouncing its final order on the appeal preferred by Respondent did not considered any of the defense taken by Petitioner and rather misinterpreted a specific term of outbound terms and conditions and allowed the appeal directing Petitioner to refund Rs.90,000/- to Respondent along with Rs.5000/- and Rs.2000/- towards compensation and litigation cost respectively.
iv. The State Commission failed to appreciate that the Petitioner had made all arrangements with regard to their classic tour of Europe for the Respondent and his family members. Hence, as per terms and conditions, the Respondent had to pay 75% of total booking amount as charges of cancellation towards the holiday cost.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
8.1 In addition to the averments made under the grounds (para 7), the petitioner contended that as per the said cancellation policy when the cancellation is made between 14 to 8 days before departure then 75% booking cost is to be deducted by Petitioner and remainder 25% of booking cost is to be refunded to Respondent. Since the booking cost of the trip in question was Rs.9,00,000/- and as per 75% deduction applicable on the total booking cost, Petitioner is entitled to recover Rs.6,75,000/- from Respondent. But as of now Respondent had paid only Rs.90,000/- towards part payment of booking amount, the Petitioner is still entitled to recover the balance Rs.5,85,000/- [Rs.6,75,000 - Rs.90,000 = Rs.5,85,000/-] from the Respondent which the Petitioner did not do as on date in pursuance of its customer-oriented policy. In view of the above, petitioner relied upon the following judgements:
(a) Bharathi Knitting Co. Vs. DHL Worldwide Express Courier (1996) 4 SCC 704.
(b) Rajasthan State Industrial Development & Investment Corporation & Anr. Vs. Diamond and Gem Development Corporation Ltd. & Anr. (2013) 5 SCC 470
(c) HDFC Bank Ltd. Vs. Kanwar Ohri & Ors. in RP No. 2001 of 2012
(d) Tamil Nadu Electricity Board and Ors. vs. N. Raju Reddiar and Ors. (1996) 4 SCC 551.
(e) Hotel Vrinda Prakash and Ors. Vs. Karnataka State Financial Corporation and Ors. 2007 (6) Kant LJ 624
8.2 On the other hand Respondent contended that in the terms and conditions of the Petitioner, Ex. B5, it is stated that only after obtaining the VISA, the date of journey will be finalized. Therefore, even without finalizing the date of journey and tour program, the Petitioner need not have booked accommodation in London and other places. The condition in Ex. B5 that the money paid will not be refunded if the trip is cancelled between 30 minus 11 days prior to departure is arbitrary and the condition cannot be applied mechanically and in the present case on hand, the condition is not applicable since the dates were not finalized in view of the delay in getting VISA, in consequence of which, the trip was cancelled unavoidably and before obtaining VISA, the Respondent have not taken any steps towards the tour and the question of booking of accommodation in foreign countries did not arise, as claimed by the Petitioner. Therefore the Petitioner is bound to return the amount collected from the Respondent, since the tour became impossible of performance.
We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties. Extract of relevant paras of orders of State Commission is reproduced below:
“5. It is pertinent to note that in the terms and conditions of the respondent/opposite party, Ex.B5, it is stated that only after obtaining the VISA, the date of journey will be finalized. Therefore, even without finalizing the date of journey and tour program, the opposite party need not have booked accommodation in London and other places. The condition in Ex. B5 that the money paid will not be refunded if the trip is cancelled between 30 minus 11 days prior to departure is arbitrary and the condition cannot be applied mechanically and in the present case on hand, the condition is not applicable since the dates were not finalized in view of the delay in getting VISA, in consequence of which, the trip was cancelled unavoidably and before obtaining VISA, the opposite parties have not taken any steps towards the tour and the question of booking of accommodation in foreign countries did not arise, as claimed by the opposite parties. Therefore, the 2nd opposite party is bound to return the amount collected from the complainant, since the tour became impossible of performance. There is no fault on the part o the complainant because a few members of his group could not get VISA and hence the complainant was forced to cancel his trip. Therefore, we hold that non-refund of the advance amount received from the complainant amounts to deficiency in service on the part of the opposite parties.
The District Forum has erroneously held that there is no deficiency in service on the part of the opposite parties in view of the terms and conditions of the opposite parties and also because the fault is on the part of the complainant in not obtaining the VISA for the group of passengers and accordingly, the order of the District Forum is liable to be set aside.
Having regard to the facts and circumstances of the case, we are of the view that there is deficiency in service on the part of the opposite parties in not refunding the advance amount to the complainant and that the complainant is entitled to get refund of the amount advanced to the opposite parties.”
Extract of relevant paras of District Forum is also reproduced below:
“As it is seen from the documents under Ex. B7 dated 05.07.2010 the opposite parties had also addressed to British High Commission to issue visa for the complainant and his family members for the tour which is to be started on 14.8.2010. But the complainant came forward with the cancellation letter under Ex.A2 on 13.8.2010. Before that the wife of the complainant had sent an e-mail dated 5.8.2010 under ExB3 to refund the advance amount. As such the complainant had informed the opposite parties to cancel the tour only within 9 days prior to the tour which is to be started on 14.8.2010. The perusal of Ex.B5 also would go to show that the opposite parties have also made all arrangements with regard to their classic tour of Europe for the complainant and his family members. Hence as per terms and conditions, the complainant had to pay Rs.75% as charges of cancellation towards the holiday cost. This fact had not at all been disputed by the complainant in his Proof Affidavit. He would simply say that he had never instructed the opposite parties for making hotel booking in London. Having asked the opposite parties to make arrangements for their Europe tour including booking of tickets, the contention of the complainant that he had never instructed the opposite party to make hotel booking at London is not sustainable. It is the complainant who actually sought for cancellation of the tour and sought for refund of the amount. It is not the case of the complainant that having received the advance amount of Rs.90,000/- from the complainant the opposite parties were negligent and deficient in their service in not making arrangements for their tour. Hence this forum come to the conclusion that the complainant has miserably failed to establish the negligence and deficiency in service on the part of the opposite parties. Hence this point is answered in favour of the opposite parties as against the complainant.”
The Complainant booked a tour “Classic Tour of Europe” with the OPs for himself and 5 other family/group members and paid an amount of Rs.90,000/- as advance @Rs.15,000/- per person on 18.06.2010. Extract of relevant terms and conditions relating to the tour in question with respect to forfeiture of deposit/cancellation charges etc. are reproduced below:
“FORFEITURE OF DEPOSITS:-
· MMT required the client to pay non-refundable interest free booking fee at the time of booking the tour along with the prescribed booking form duly completed for the outbound tour booked by the client.
· In the event the client cancels the booking or failure on the part at the to adhere to the tour payment scheduled as informed in the accommodation check list or in the event of visa of any country is not granted or is unable to travel on the tour booked by the client due to any reason whatsoever including medical ground or sickness following cancellation charges would be levied.
CANCELLATION CHARGES:
When cancellation is made Charge
Prior to 45 days or more Booking fees
Between 44 to 31 days of departure 25% of Holiday Cost
Between 30 to 15 days of departure 50% Holiday Cost
Between 14 to 8 days of departure 75% of Holiday Cost
Prior to 7 days of departure 100% of Holiday Cost
CANCELLATION DUE TO VISA REJECTION:
· All the clients travelling on an outbound must be possession of a valid Visa of the country in which the clients would be visiting as a part of the outbound tour. The discretion to grant the visa resets solely with the concerned authorities and MMT will in no way be held responsible in case the visa is refused by the concerned authorities for whatsoever reasons(s).
· MMT shall not be held responsible for non-issuance of Visa due to receipt of incomplete/delayed documents from the clients. It is a possibility that the consulate may ask the passenger to appear for a personal interview. This is at the sole discretion of the consulate / authorities.
· Passenger whose visas are not granted by the UK/SCHENGEN consulates must initiates us at-least 45 days in advance, at which time MMT will deduct the aforesaid amount towards administrative charges in addition to any additional visa expenses incurred and refund and balance amount. However, if such intimation is not received as aforesaid cancellation charges will be applicable as per the cancellation mentioned hereunder.
· The date of travel requested by the client would be confirmed after the client obtains the Visa and is subject to availability of tour at the point of time.
xxx
PAYMENTS:
Balance payments will have to be made 30 days prior to the outbound tour departure date. Final documents and airline tickets will be issued only after the balance payment is made to MMT. PAN card copy will be required when payments amounting Rs.25,000/ or above are made by cash.
Copy of the brochure containing details of the said tour is on record. On 05.08.2010, the Complainant wrote to the OP stating that as his getting VISA is doubtful, he sought refund extract of the said e-mail dated 05.08.2010 is reproduced below:
“Since I didn’t get my visa our tour is doubtful, others who are travelling with me are Senior Citizens… since they are not comfortable travelling without me I request you to count us out from the tour (3 days back itself I’d cleared everything to you in our telephonic conversation). Kindly understand the inconvenience and as you promised kindly send us back all our PASSPORTS, DOCUMENTS AND THE REFUND as early as possible……If God permits we can arrange for the same tour with you after a few months later…. Kindly do the needful, looking forward for your reply and early mail.. The address you can send the documents is given below:
This was followed by another e-mail dated 13.08.2010 which is also extracted below:
“Dear Aanchal,
Despite our best efforts we could not get visa hence we had to cancel our trip to Europe.. and informed you 10 days ago.. Kindly return our payment of Rs.90,000/- (for which we have not benefited).. Am surprised to hear that you have booked hotel accommodation without the ticket or visa…this is a kind of cheating from your side..
To avoid unpleasantness and legal action kindly return our payment as soon as possible.. We will wait till Monday i.e.16-8-2010…or we will have to proceed with further action.”
It is to be noted that grant of Visa is a sovereign function of the receiving country and it is the primary duty of the person travelling to a particular country to obtain Visa after filing the requisite applications/documents in compliance of with the terms and conditions and laid down procedure of the country concerned. Final decision to grant Visa or not rest with the concerned country. The travel agent can at the most facilitate its customers for obtaining the Visa in terms of filling their application and/or follow up etc. but cannot guarantee the grant of Visa by the concerned Embassy/Country. In this case, OP did write to the Visa Counselor, British High Commission, Chennai on 05.07.2010 requesting for grant of Visa to the Complainant and other members of his group. Extract of the said letter is reproduced below:
“To,
The Visa Consoler
British High Commission,
Chennai
Date:05 July 2010
Subject: Issuance of Multiple Entry Visa
Dear Madam/Sir,
We hereby confirm that the passengers listed below are booked to travel with us on our Holiday plus Group Tour as per details given below.
Name of Tour - Classic Tour of Europe (13N/14D)
Departure Dated - 14 Aug’2010
Itinerary - As per Attached Voucher
Booking ID - IN1006B05331
Name Passport No.
Ms. Sindhu Surendran H2895572
Ms. ShubhanGini Sundra E5098453
Ms. Shanthi Nagarajan F8137935
Mr. Alan John H1920090
Ms. Chitra Thankappan H9582997
Mr. Sivagaminathan Nagarajan J0859078
In light of the above I would like your honourable consulate to kindly consider my request to grant them the visa.
All the arrangements of the group tour such as airfare, accommodation, overseas medical insurance, sight seeing, transfers, meals etc. are original & inclusive in the holiday booked by the customers.
All the expenses of the holiday will be borne by the customer.
The passengers will return to India on completion of the tour. We would be highly obliged if the necessary tourist visa is granted to them.
Thanking you,
OP wrote an e-mail dated 29.07.2010 to the Complainant seeking balance payment. Extract of which is given below:
“Please consider the e-mail on priority..I am unable to contact you & we are not getting any response on main from your side.
We are only 14 days to the departure date & need the balance payment as we have confirmed the reservation with the overseas vendor.
PER PAX INR150000/X6 – INR 9,00,000/-
Received – INR 90,000/-
BALANCE we need is – 8,10,000/-
It is the contention of the OP that they have already made confirmed bookings of hotels etc. for the Complainant and his group members and in accordance with the terms and conditions they are entitled to deduct cancellation charges @75% of the holiday cost as the cancellation was made between 8 to 14 days of the departure. The Complainant on the other hand contend that undertaking of the tour was subject to the Complainant and other members getting Visa and OP ought not to have made confirmed bookings of the hotels etc. without getting confirmation from the Complainant for having got the Visa. It is to be noted that even the booking form signed by the Complainant on 18.06.2010 vide which Rs.90,000/- was paid states that this amount is non-refundable, interest bearing deposit, which shall stand forfeited in the event of cancellation of the tour by the Complainant/other members due to any reason. Further, the forfeiture of deposit condition of the terms and conditions cited above also states that in the event the client cancels the booking or failure on their part to adhere to the tour payment scheduled or in the event Visa not being granted or the client unable to travel due to any reason, whatsoever, including medical ground or sickness, it will be subject to cancellation charges mentioned in the said terms & conditions. The said terms & conditions also state that OP will in no way be held responsible in case Visa is refused by the concerned authority for whatsoever reasons, stating further that passengers whose Visas are not granted must initiate the OP at least 45 days in advance, at which time the OP will deduct the amount towards the administrative charges in addition to any additional Visa expenses incurred and refund the balance amount, the condition further states that if such intimation is not given aforesaid cancellation charges will be applicable as per cancellation mentioned in the terms and conditions. In this case, the tour was to start on 14.08.2010 and the Complainant informed the OP on 05.08.2010 only that they would be unable to travel on account of not getting Visa and sought refund. As this period was falling within 14 to 8 days of departure, according to OPs they are entitled to charge cancellation charges @75% of the holiday cost. However, it is to be noted that the terms and conditions relating to cancellation due to Visa rejection also contain following important clause.
“The date of travel requested by the client would be confirmed after the client obtains the Visa and is subject to availability to tour at the point of time.”
It is this clause on which reliance is made by the Complainant that in the absence of Complainant/his group members getting Visa, the OP was under no obligation to confirm the tour dates and hence ought not to have done a confirmed booking of hotels etc. To this the OPs have replied that in such international tours, Complainant cannot expect the OP to make confirmed bookings at the last minute and OPs need at least 45 days’ time to make confirmed bookings (accommodation/air-tickets/sightseeing) of the international trip and this was the reason why this particular clause of 45 days prior intimation was added in the outbound terms and conditions which were duly accepted by the Complainant. The contention of the Complainant that the conditions in Ex. B5 that the money paid will not be refunded if the trip is cancelled between 30 minus 11 days prior to departure is arbitrary, cannot be accepted as the Complainant has consciously agreed to such conditions and for such international trips where arrangements relating to accommodation, sightseeing, transport etc. have to be made much in advance to get better deals and confirmed reservations, such conditions do not appear to be arbitrary. In this case, it is a Complainant who fails to get the Visa and sought cancellation of the trip and refund. There is no deficiency of service on the part of the OP. Hence, keeping in view the entire facts and circumstances of the case, we are of the considered view that OP is justified in forfeiting the entire booking amount of Rs.90,000/- (Rs.15,000/- per person). Hence we hold that State Commission went wrong in allowing the appeal filed by the Complainant and directing the OP to pay a sum of Rs.90,000/- to the Complainant along with compensation of Rs.5,000/- and litigation cost of Rs.2,000/-. The order of State Commission cannot be sustained; hence the same is hereby set aside, the complaint is hereby dismissed. However, it is made clear that OPs will be entitled to forfeit only the booking amount of Rs.90,000/- but will not be entitled to recover any further amount beyond the booking amount by citing the cancellation clauses of the terms and conditions.
Revision Petition stand disposed off with above orders.
The pending IAs in the case, if any, also stand disposed off.