Judgment:
Oral Order:
Per Justice Mr. S.B. Mhase, Honble President
1. This matter was listed for final disposal on todays board and we have heard Ms. Khushbu Ghia- appellant in person and Mr. S.B. Prabhawalkar-Advocate for the O.P. Factual matrix which are not in dispute are as follows:-
2. O.P. is a limited company registered under the Companies Act of 1956 carrying out business of Tours and Travels in various parts of the World. We are concerned in the present matter tour of Europe. The said tour as per code of the O.P. is âPLEV 2104 and the tour was to commence on 21/4/1999 till 08/05/1999 and the said tour to Europe was for 18 days. From the brochure, we find that it was a tour for vegetarian tourists. The complainant is a teacher working with Palm Beach School in Mumbai. On 30/1/1999, complainant approached the O.P. and deposited an amount of Rs.10,000/- and confirmed the booking. It further appears that from time to time the further amounts were deposited by the complainant and on 30/1/1999, one Ms.Valentine, who was an employee of the O.P. issued a passenger tour ticket to the complainant. From the said tour ticket, it appears that the passenger ticket was issued to the complainant in respect of the amount of Rs.11,153/- and 2059 US dollars. An amount of Rs.11,153/- was taken towards the government tax, airport tax, etc. Out of this amount Rs.203/- were taken as government tax, Rs.1950/- were taken as airport tax and Rs.9000/- were collected by the O.P. for the visa to be obtained to travel in various countries of Europe. It is further to be noted that cost of the tour was deposited in US dollars and 1999 dollars were taken by way of cost of the tour and 60 dollars were taken as cost of tour of Paris to London and, thus, total 2059 dollars were taken by the O.P. for this Europe tour including London. It is to be noted from this passenger tour ticket that UK visa/transfer was to be completed by the complainant by 22/2/1999. Thus to obtain UK visa prior to a specified date referred to was an obligation of the complainant. Except this other visas which are required for the said tour were to be obtained by the O.P. For the said purpose O.P. has collected an amount of Rs.9000/- as stated above. From the brochure given to the complainant and as a result of the booking for the said tour she was made to understand that the conditions of the services to be provided by the O.P. were as follows:-
âYou must be in possession of the following visas:
COUNTRY TYPE OF VISA COUNTRY TYPE OF VISA
UK Multiple entry Schengenstatin Multiple entry
Switzerland Double entry Dubai Special
3. The cost of these visas, amounting to Rs.9000/- (per adult/child) is not included in your Tour price. This cost includes documentation, processing and consulate fees. This cost does not include courier charges. You must also be in possession of a visa for the United Kingdom, for which a personal interview is required. Cost of the UK visa is not included. The Schengenstatin Visa is valid for travel to Netherlands, Germany, Austria, Italy and France (In case any change in the European Community visa policy, additional charges will be applicable).â
4. In view of these terms, it appears that the passengers tour ticket contained a statement that âUK visa/Transfer time limit 22/02/1999â. In view of the above referred clause, the obligation to get the visas of the countries referred to, except UK, was of opponent. It is further to be noted that the O.Ps have also sent the documents or instructions to the complainant, which is signed by complainant and Ms.Valentine employee of the opponent, who appears to be a Reservation and Information officer. It is to be noted that the opponent by the said document placed the condition to the following effect: âPlease note that it is mandatory to do your visa, foreign exchange and mediclaim policy through SOTC onlyâ and then further conditions have been stated. So from the brochure and as per the actual agreement between the parties, legal responsibility to obtain the visa, which is relevant part of present dispute was on opponent and to this effect, there is no dispute between the parties. In view of these terms and conditions referred to above, in order to get a visa for European tour, the complainant submitted documents to the opponents as required by them for getting visa. But one of the important documents, which was submitted by the complainant to the O.P. was passport, which was issued in favour of the complainant on 10/11/1993 by the Passport authorities and on the basis of this, O.Ps have made an application to the Italian Consulate in India to get a visa in favour of the complainant. Said passport was submitted to the Italian Consulate on 30/3/1999. However, on 3/4/1999 it appears that the O.Ps had informed to the complainant that her passport which was submitted to Italian Consulate was lost. Finally, it was confirmed by 09/4/1999 that the said passport was lost or misplaced and not available. Thereafter, it appears that the first information report was lodged. When it was found that visa as required for the European tours would not be made available, then the complainant was suggested to get a duplicate passport. In order to get a duplicate passport, it was further necessary to state as to what had happened to the original passport and, therefore, first information report was lodged on 10/4/1999. In order to lodge the complaint, opponent has procured the letter to that effect from Indian Consulate.
5. Thereafter, the proposal was made to get a duplicate passport. First proposal was made on 12/4/1999. Complainant was called for affirmation of the affidavit and, accordingly, complainant has affirmed the affidavit with O.P. as per O.Ps instructions. On 13/4/1999, complainant was asked to reach at the passport office at 8.30 a.m., whereas Passport office opens at 10.00 a.m. and when the complainants turn came, the passport officer informed her that the application form was wrong. Therefore, on 14/4/1999 complainant attended the Esplanade Court at a short notice given by the opponent to swear a correct affidavit. Fresh application was made on 15/4/1999. Said application was required to be cleared by the CID and that application was accepted but, no passport was issued on the basis of that application, at least prior to the commencement of the tour. However, on that application, the duplicate passport was issued by 19/5/1999. The above facts do show that the complainant could not participate in the European tours as scheduled by her and as planned by the opponents.
6. There was a lot of correspondence between the parties, but it appears that the amount of Rs.1,06,653/- which the complainant has paid to the opponents from time to time was returned by the opponents on 26/5/1999, when actually the tour has commenced on 21/4/1999 and was over by 8/5/1999. Under these circumstances, the complainant issued notice claiming damages as prayed for in the complaint and since it was not paid to her, she has filed the present complaint. It is to be noted that the facts which are stated above are not in dispute. Opponents have filed a reply and have denied the claim.
7. The main thrust of the opposition is reflected in para 4(iv) and 4(ix) of written statement.
8. On going through these replies from para no.4(iv) and (ix) what we find that the factual data which the complainant has given is not disputed. Only case made out by the opponent is that the passport in question was lost by Italian Consulate and for the act of the Italian Consulate, opponents are not responsible and therefore, it cannot be stated that there is deficiency in service.
9. It is further their case that in order to get visa, a duplicate passport, could have been obtained and for the said purpose the opponents have helped the complainant. In order to get duplicate passport the procedure is required to be followed and in the said procedure if the complainant is required to attend the office for the said purpose, the opponents cannot be blamed. Thus, opponents contends that not only good service had been given but by rendering extra service the opponents had shown good gesture towards complainant.
10. Thirdly, the claim made by the complainant is exorbitant, not supported by the material and it is an attempt to extract the monies from the opponent and it has been rightly replied by the opponent by issuing replies through advocate. In view of the above referred facts from the complaint and the replies which are on record, we find that the following is a consumer dispute between the parties, which requires adjudication by the State Commission.
1. Whether opponent is under obligation to get a visa for the complainant and if the visa could not be obtained as a result of the passport being lost by the Italian Consulate, whether it relieves or obviates the opponent from the obligation to get duplicate passport and thereby, visa?
2. Whether complainant is entitled for the damages, in case it was found that there is deficiency on the part of the opponents in not procuring visa and what should be the damages?
3. Whether the complainant is entitled for any damages for attending the passport office from time to time as per the directions of the O.P. in order to get duplicate passport?
4. Whether the complainant is eligible to get interest @ 24% p.a. for two months from 19/03/1999 to 26/05/1999 on the amount which was refunded by the opponents namely Rs.1,06,653/-?
5. Whether the complainant is entitled to get damages of Rs.12,50,000/-?
6. Whether the complainant is entitled to get loss suffered due to fluctuation in price of dollars Rs.1140/-?
The complainant had booked for European tour on 30/1/1999 and paid Rs.10,000/- and, thereafter, on 30/1/1999 the passengers tour ticket was issued to the complainant, which shows that the opponents have received Rs.11,153/- and Rs.2059/- US dollars as stated in the above part of the order, which is not in dispute. So also the complainant was to obtain UK visa prior to 22/2/1999 and accordingly, complainant has obtained the said visa is also not in dispute. As per the brochure and the passengers tour ticket and the documents signed by the complainant and Ms. Valentine as Research and Information officer of the respondent, whereby complainant was made to understand that it is mandatory to do the visa, foreign exchange and mediclaim policies through the O.P. only is not in dispute. The fact that out of amount of Rs.11,153/- , Rs.9000/- were collected by the opponents in order to obtain visa of the European countries, except the UK is also not in dispute. Therefore, in order the opponent could discharge its obligation complainant was supposed to hand over certain documents and one of the documents was a passport of the complainant. All these documents were handed over by the complainant to the opponents so that the opponent could discharge its obligation to obtain visa is also not in dispute. It is submission of opponent that the passport which was given to opponent was submitted by the opponents before Italian Consulate and said Consulate had lost the said passport. Therefore, it is contended that for not getting visa for European tour, opponent is not responsible.
After going through the terms and conditions, which are referred to above, only inference follows that to obtain visa of European countries so that complainant can participate in European tours as scheduled was an obligation of the O.P. and it was a contractual obligation of the O.P. since specific representations to that effect were made to the complainant and the complainant has accepted those representations and signed the documents to that effect with the Reservation and Information officer Ms.Valentine and paid amount as demanded by O.P. Therefore, reading together all these documents, the obligation which the opponent was supposed to discharge is to give visa of European countries to the complainant along with the original passport, which has been submitted to them so as to obtain the visa and therefore, they cannot contend that the passport has been lost by the Italian Consulate and therefore, they are not under legal and contractual obligation. On the contrary, if the passport and other documents were submitted by the opponents to the Italian Consulate and Italian Consulate were supposed to give visa on the basis of those documents, when it was found by the opponent that the passport has been lost by Italian Consulate, the opponent should have taken appropriate steps as against Italian Consulate, but we find from the reply and the submissions that they only tried to search of the passport and secured a letter that the passport has been lost at the end of Italian Consulate. But that is not sufficient. If in order to procure the visa, as original passport was lost, they were under obligation to get a duplicate passport and visa prior to the commencement of the said tour and thereby, could have discharged their obligation. But what is to be found in the present matter that they only obtained a letter from the Italian Consulate and, thereafter, lodged a complaint. Surprisingly, when the opponents are in the field for years together, we find that they must be knowing in what manner application is to be made for getting duplicate passport. First application was found to be incorrect by the authorities. Second application was made but, thereafter, it was not pursued by them so as to get a duplicate passport to be produced before Italian Consulate to get visa. Fact of the loss of passport was first time revealed sometime on 03/4/1999. The letter from the Italian Consulate was obtained on or about 09/4/1999 and, thereafter, First information was lodged. First application for duplicate passport was made on 12/4/1999 ie.six days after lodging of FIR, which was found to be incorrect on 13/4/1999. Thereafter another application was made on 16/4/1999 and on the basis of that application the duplicate passport was granted on 19/5/1999. What was necessary and was the legal obligation of the O.P. was to obtain the passport and visa prior to commencement of the tour and that was the service which they were expected to render to the complainant in view of the contract and agreement between the parties. Thus under the circumstances, we find that, contractual obligation and the service which was supposed to be rendered by opponent was rendered by opponent to the complainant. Therefore, in the present matter, the O.P. being a service provider has provided deficient service to the complainant as a result of which the complainant could not travel to the European countries and her whole schedule of the travel was disturbed as a result of non providing of proper service. We find that the O.P. is liable for the damages for not providing the service as per contractual obligation stated above.
We have noticed that the applications for duplicate passport were made. No doubt for swearing an affidavit party is required, but what we find is that, that first application was improperly made by the O.P. Second application though made by them properly, it was made at delayed stage. The fact still remains that opponents have provided said service, not as courtesy and/or good gesture towards the complainant, as we have already found that the responsibility to obtain visa was of the O.P. However, the deficiency in service not only lies in not getting duplicate passport from the concerned authorities well in advance so that visa can be obtained from the Italian Consulate but also lies in not getting visa and, therefore, under these circumstances the O.P. being a service provider should not have made complainant to run from pillar to post. We note that when tour was to commence on 21/4/1999, there was no effort made by the O.P. to get the duplicate passport and visa from the concerned authorities. From the material placed on record, it is crystal clear that after 15/04/1999 O.P. has not done anything to get visa prior to commencement of the tour. In the result, they have also not discharged their legal obligation. The service which is rendered by O.P. is a deficient service. On the contrary, what we find is that, the complainant had attended the various courts and offices, where the O.P. directed complainant to attend from time to time and the complainant had extended co-operation to the opponents to discharge their obligation of getting visa and, therefore, the case made out by the opponents and the submissions made to that effect at bar that it was a good gesture on the part of the opponents to help the complainant to get duplicate passport is misconceived and does not impress the State Commission.
Thus, on both the counts we find that O.Ps are responsible and the service which has been provided by them is a deficient service and is not in accordance with the contractual obligation.
What is important to be noted is that after notice by complainant an amount of Rs.1,06,653/- was returned by the O.P. The notice to that effect appears to have been given on 25/5/1999 and immediately on 26/5/1999 amount has been paid. Therefore, claim made by the complainant that the complainant is entitled to get interest @ 24% p.a. on the said amount for two months is not justifiable and is hereby rejected.
O.P. has claimed Rs.12,50,000/- by way of damages, since she was required to miss the tour. Complainant does not disclose the particulars of the said amount, in what manner the damages were calculated by the complainant. Not only that, but the affidavit and the evidence which was filed on record also does not show those particulars. Only because the tour is required to be cancelled, the amount of Rs.12,50,000/- cannot be claimed. However, still the question remains what should be proper damages to be paid to the complainant under the circumstances stated above. What we find is that since the complainant was required to cancel the tour, she could not enjoy the holidays as desired by her and because of the loss of passport, she was required to suffer mental agony and all this has happened when she was on vacation thereby, she could not have peaceful vacation while in India also and therefore, in lump sum we quantify the damages at Rs.75,000/-. The complainant has also claimed Rs.1,140/- by way of loss suffered due to fluctuation in the price of dollars. Complainant has placed on record the cash memo issued by the Foreign Exchange division dated 24/3/1999, by which the complainant has purchased 3000 dollars for an amount of Rs.1,29,747/-. She has encashed those dollars and the Encashment Certificate by American Express Bank Ltd. has been produced on record dated 25/5/1999, which shows that those dollars purchased were encashed for Rs.39,505.85ps. So total loss suffered is Rs.90,241/-. The complainant has claimed only Rs.1140/- on this account and we allow said amount as prayed for. So far as interest on damages is concerned, we are not in favour of granting the interest from 25/5/1999, since we have noticed that the original amount has been returned immediately on 26/5/1999. In the result, we pass following order:-
Order
1. Complaint is partially allowed.
2. Opponents are hereby directed to pay an amount of Rs.75,000/- within a period of one month from today. If the opponents fails to pay the amount as directed above, the opponents shall pay the interest @ 8.50% p.a. on the said amount from the date of order till actual realization of the amount.
3. Opponents shall pay Rs.1140/- towards loss suffered due to fluctuation in price of dollars.
4. Opponents shall pay an amount of Rs.10,000/- to the complainant towards cost of the complaint.
5. Order is dictated in the presence of complainant and Advocate for the O.P.
6. Copies of the order be furnished to the parties.
7. Complaint stands disposed of accordingly.