R. Syamb Ananthan and Others Vs. Cox and Kings and Another - Court Judgment

J. Jayaram, Judicial Member

The case of the complainant is as follows:

The 1^st and 2^nd complainants are husband and wife, the 3^rd complainant is their son, the 4^th complainant is their daughter, the 5^th complainant is their close relative, and the 6^th complainant is their family friend. The complainants had arranged a foreign tour covering Thailand and Singapore for a week in May, 2011 for which the complainants had paid an initial amount of Rs.1,20,000/-; and subsequently paid sums of Rs.1,00,000/- and Rs.3,41,000/-, and thus, a total sum of Rs.5,61,000/- was paid. The complainants were of 5 adults and one child who is the 4^th complainant / daughter aged 11 years. The first opposite party instead of booking flight tickets and making arrangements for 5 adults and one child in a single group, they arranged 4 adults + 1 child in one group and another separate single ticket for one adult, thus they were divided into two groups, as a result of which right from the beginning when they boarded the flight from Chennai till they returned, they suffered a lot and they could not be together in one group and so they had to omit certain events and they had to spend extra money for travel in vehicles, lodging and hotels. The complainants have narrated the following facts pointing out the unfair trade practice, gross negligence and the deficiency in service on the part of the opposite parties.

“a) Not treating the 1^st complainant properly at the office of the first opposite party;

b) Treating the 1^st complainant indifferently and showing more interest on the Cricket Match that was telecast on the Televisions installed at the office of the first opposite party;

c) Not blocking the tickets together for our 6 family members as a single family unit;

d) By blocking a separate ticket for the 2^nd complainant and mother of the 3^rd and 4^th complainants was forced to be treated as an outsider and therefore, her luggage was not counted with the luggage of our other family members;

e) Not even informing about the programme and schedule well in advance or at least one week before the actual tour;

f) Crystallizing everything only on 4/5/2011 at 5.30 in the evening when the flight was to leave for Bangkok at 12.00 mid night on 5/5/2011

g) Failure to give the Air tickets while giving the other papers to the first complainant;

h) When informed instead of sending a messenger to hand over the air tickets, asked the first complainant to send a person to receive the tickets;

i) The opposite parties while informing the Thailand representative that the services were for 5+1, failed to do so, while informing the Singapore representative;

j) The opposite parties intimating the Singapore representative to services for only 4+1 after receiving the money for 5+1;

k) Made the complainants to pay additional charges for local tour in Singapore at the Universal Studios and also at all places where they were refused to be accommodated as they were 5+1;

l) Accommodated the complainants 1 to 6 in a filthy hotel even though it was promised that they would be accommodated in a three-star superior hotel;

m) Not providing them with Indian food even though it was promised; and forcing them to eat elsewhere by spending money from their own pockets;

n) Opposite parties not returning the money after deducting the cancellation charges for alternative flight;

o) Opposite parties not attending to our complaint and instead showing contempt and ditching them after the tour was completed.

p) Opposite parties making the complainants to pay extra for their morning breakfast during their stay in Singapore;

q) Opposite parties forcing them to change the hotel and to spend money for four nights;

r) Opposite parties even now not returning the cost of the package for one adult to them”

2. Besides the above, the complainants suffered mental and physical agony and issued a notice dated 29-6-2011, to the opposite parties calling upon them to pay a sum of Rs.50 Lac as compensation; but the Opposite parties offered to pay only a sum of Rs.1,42,303/- as compensation which the complainant did not accept. Hence the complaint, praying for direction to the Opposite parties to pay a sum of Rs.50,00,000/- (Rupees Fifty Lac) for negligence, deficiency in service and mental agony.

3. The Opposite parties filed version stating as follows:

The complainants initially paid a sum of Rs.1,20,000/- only on the date of booking and they subsequently paid a sum of Rs.3,41,000/- on 4-5-2011 i.e. only prior to the departure violating the terms and conditions of the tour which says that balance payments towards cost of the tour must be paid to the Opposite parties at least 45 days prior to the departure of the tour. Further, as per their liabilities clause contained in the terms and conditions, they are not liable for any omissions or commissions on the part of the Opposite parties, and that they are not liable for any deficiency in service on their part. In response to the legal notice sent by the complainants, they offered to settle the matter on payment of Rs.1,42,303/-, but the complainants did not agree and there is no deficiency in service on their part and hence they are not liable to compensate the complainants.

4. The complainants filed proof affidavit and 16 documents were filed and marked as Ex.A1 to A16 on the side of the complainants. Proof affidavit was filed by the opposite parties and 5 documents were filed and marked as Ex.B1 to B5 on the side of the opposite parties.

5. The points for consideration are:

(i) Whether there is deficiency in service on the part of the opposite parties as alleged in the complainant;

(ii) If so, to what relief the complainants are entitled.

6. Admittedly, the complainants were 5 adults and one child and in total they were 6 in number. It is pertinent to note that the opposite parties inadvertently booked the ticket for 5 persons viz. 4 adults + 1 child in one group and separate ticket for one adult in a separate group, and thus, as admitted by the opposite parties, the 6 persons were divided into two groups. This amounts to deficiency in service on the part of the opposite parties.

7. Consequent on the division of the complainants in two groups right from their travel from Chennai until they returned to Chennai they suffered a lot mentally and physically and they could not travel together, and in Bangkok and Singapore they had to pay extra money for travel in vehicles, boarding and lodging since the opposite parties had arranged all facilities including boarding, lodging and travel only for 4+1, omitting another adult and it goes without saying that due to the negligence and deficiency in service on the part of the opposite parties, the entire tour was not enjoyable to the complainants and the journey was an unpleasant experience for them. Therefore, apart from mental and physical agony, they had to spend more money going abroad and the opposite parties could not set it right.

8. The opposite parties relies on the liability clause in their terms and conditions in the agreement and contend that they are not liable for any act of commission or omission and they are not liable for any deficiency in service on their part. This clause in the agreement is arbitrary and violative of the principles of natural justice and these conditions are not acceptable and cannot be acted upon and resorted to by the opposite parties. Therefore, the contention of the opposite parties that they cannot be held liable for any negligence or deficiency in service on their part, is untenable and without any substance.

9. The further contention of the opposite parties would be that the complainants themselves wanted separate rooms and they wanted to avail more facilities and they did not conduct themselves as per the terms and conditions in the agreement. There is no force in this argument and this contention is unsustainable.

10. Considering the entire evidence placed on both sides, we hold that there is unfair trade practice, negligence and deficiency in service on the part of the opposite parties.

11. The opposite parties have offered to pay a sum of Rs.1,42,303/- as compensation to the complainants. Having regard to the above offer by the opposite parties, and considering the facts and circumstances, we feel that in addition to the money offered to the complainants, a further sum of Rs.3.5 Lac would be the reasonable and adequate compensation on various grounds.

12. In the result, the complaint is partly allowed directing the opposite parties to pay to the complainants a sum of Rs.1,42,303/- as agreed by them and a further sum of Rs.3.5 Lac (Rupees Three Lac and Fifty Thousand only) for the unfair trade practice, negligence, deficiency in service, mental agony, and physical suffering. The opposite parties shall pay costs of Rs.10,000/- (Rupees Ten Thousand only) (total sum of Rs.5,02,303/-). Time for compliance: two months from the date of receipt of copy of this order.